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Full text of "Illinois Appellate Court Unpublished Opinions: second series"

^ 



49618 

LEMONT NATIONAL BANK, 
a banking corporation, 



0^5 Z-/{'1) 

APPEAL FROM THE 
SUPERIOR COURT 

OF COOK COUNTY 




\ 



Plaintiff -Appellee , 

V. 

WILLIAM BOZA, WALTER ALEX BOZA, 
and EDWARD BOZA, 

Defendants-Appellants , 

MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT: 

Tnis IS an appeal from a decree enjoining defendants from 
encroaching on plaintiff '^b property. 

Prior to 1890, Main Street in Lemont Illinois, ran in a 
generally east and west direction, parallel to a railroad bed located 
about one-half block north. Around 1890, the railroad bed was re- 
located to run in a generally northeasterly-southwesterly direction. 
Main Street was similarly relocated. This change effected the sub- 
division plat„ in that lots were subsequently sold perpendicular to the 
relocated Main Street. 

About 1900, Henry Suhr and Bertha Suhr, his wife, purchased 
tne premises commonly known as 306 Main Street, Lemont, Illinois. The 
premises contained a two story building. The first floor was used as 
as a feed store and the second floor as an apartment. At the rear of 
the premises was a lean-to shed and a combination yard-passageway. To 
the rear of that was a barn located in part over a creek. The center 
line of said creek was referred to, in the recorded deeds, as the 
southern boundary of the premises. On each side of the building was a 
ariveway. Teams of horses and wagons of the Suhrs , their customers and 
suppliers would make a U-turn around the building. Part of the area to 
tne east of the building is the area in dispute. 

On October 3^ 1930, Bertha Suhr and Henry Suhr sold the 
premises to their two sons, William Suhr and George Suhr, who in turn, 
sold the premises to defendant John Boza. Subsequently, the various 
defendants in this action acquired interest in the property, which has 



remained witn them continuously to tne present date. 

Plaintiff filed a bill in chancery for an injunciion and 
damages against defendants alleging that it was the record title owner 
of certain real estate adjoining defendants" real estate, that the 
southeast corner of defendants' two story building "encroached" upon 
the bank's real estate about 32 inches on one side and 12 inches on the 
other;- that the eaves of defendants" building "encroached" upon the 
bank & real estate about 2-1/2 feet; and that tne sidewalk along tne 
east side of defendants' building encroached about 3 to 5 feet at a 
point 52 feet south of the front lot line„ 

Plaintiff further alleged that it attempted to place a drive-- 
way around the west end of its new bahk building and that at the west- 
erly line of its property it commenced to build a brick wall separating 
its property from that of defendants; that when it endeavored to 
complete the wail where it crossed defendants" sidewalk, along the east 
side of defendants'' bu^-lding, defendants destroyed the wall, that 
although defendants were notified of their encroachment upon plaintiff's 
property,, they failed to remove it; that the encroachment makes plain- 
tiff °s property less valuable, that such encroachment is a continuing 
one and unless the encroachment is removed, plaintiff will continue to 
suffer irreparable injury; that unless an injunction issues restraining 
defendants from interfering with the construction of the wall^ such 
interference will continue to damage plaintiff irreparably; and that 
plaint it f has no adequate remedy at law. 

In their amended and supplemental answer defendants admitted 
plaintiffs record title as alleged in plaintiff's complaint but 
Specifically denied that plaintiff is the actual owner, and m possession 
of all of its record title; denied that all of defendants' real estate 
lies west of the eastern boundary of defendants' record title, and 
denied the existence of any encroachment.. Defendants then stated that a 
portion of the real estate owned by them extends east of plaintiff's 



^3 = 

westerly record title boundary; that the front portion of defendants' 
building is over 50 years old; that the rear addition and sidewalk were 
built over 20 years prior to this suit; that the area covered by the 
sidewalk was used as a private walk for many years; that plaintiff, in 
order to erect ttie driveway on the west side of their building, removed 
sod and- a concrete slab from the real estate owned by defendants; that 
by means of threats of physical violence, arrest, and the misuse of the 
village police force, plaintiff forcibly erected a portion of its 
diagonal concrete curb on defendants' property; that defendants were 
forced to remove a portion of said curb to re-establish the only means 
of ingress and egress to the rear entrance of the rear apartment and 
to the rear yard; that such means of ingress and egress were, and still 
are, open, notorious, and continuing for a period of more than 20 years 
prior to the filing of the suit ; and that any alleged notice upon 
defendants was insufficient in law or equity to toll the twenty-year 
Statute of Limitations. 

As an affirmative defense, defendants stated that they are 
the owners of the real estate in dispute by reason of their having been 
in actual, open, notorious, adverse, continuous hostile and exclusive 
possession of the premises far in excess of twenty years. 

As a further affirmative defense, defendants stated that the 
alleged encroachment of the southeast corner of their building and 
their sidewalk in no way interferes with plaintiff's operations; and 
that any injunction with respect to defendants' building and sidewalk 
would be harsh and oppressive in that it would deny ingress and egress 
to the rear of defendants' building. 

Defendants' final affirmative defense stated that plaintiff 
built a high concrete wall in the rear of the premises, upon land 
dedicated as a public street which it had no right to do, and therefore, 
has come into equity without "clean hands." 

Defendants filed an amended counterclaim in which they alleged 



LhaL in 1902 Bertha and Henry Suhr owned certain real estate both by 
I ecord citle and by adverse possession; that the real estate was 
inproved with a two story frame building with a stairway and porch on 
itie easi wall whicn provided the only means of ingress and egress to 
the second fioor, a frame shed attached to the building, a two story 
frame barn located at the rear of the premises, and an ouchouse located 
east of tne east wali of the barn; that m 1913 Bertha and Henry Suhr 
replaced ihe tiame barn and outhouse with a two story frame barn 
approximately lO ieei by 38 feet, which they used for storing chattels 
and horses, that the area immediately east of the barn was u^ed for 
parking delivery wagons, that the new barn extended onto :he disputed 
real estate; that from 1902 and continuously up to 193'4-, tne unimproved 
.and to tne west of defendants'' building, to the east of tneir Duiiding, 
and immediately south of the building, was used as a''U" shaped drive- 
way by the Suhi s and their successors in business in the store located 
in defendants' bu'-ldlng, that on October 2, 1930, Bertha Suhr and Henry 
Suhr conveyed said real estate to their sons, G. William Suhr and 
George E. Sunr , that m 193'j- G.. William Suhr and George E. Suhr 
barricaded the "U" shaped driveway to the east of the building with a 
steel plate which was erected parallel to the south line of the Mam 
Street public sidewalk: that in the spring of 1938, G, William, Suhr and 
George E, Suhr informed John Po Boza that they were the owners of 
certain land together with the two story frame building, the frame shed 
attached ro the building, the two story frame barn and a strip of land 
approximately 12 teet wide on the east side of the building and 
commencing south from tne south line of the Main Street public walk and 
running approximately parallel with the east wall of the frame building 
^ind : he east wal^ of the barn in a generally northerly and southerly 
direction to the north bank of the creek m the rear of the premises j 
which strip of Land was the same strip of land which was usee as the 



„5.' 

east side of the "U" shaped driveway; that on August 8, 1938,, G. 
William Suhr and George E, Suhr as sellers entered into Articles of 
Agreement 5 for a Warrenty Deed, with John Boza providing for installment 
payments i that on June 25, 1938, John Boza paid $500.00 and took 
possession of the land, together with all of the improvements thereon 
and the aforesaid strip referred to hereinabove; that after obtaining 
possession, defendants removed the steel plate barricade, removed the 
frame shed attached to the rear wall of the building, excavated rhe 
land underneath the building for a basement, dumped all the excavated 
earth upon che east side of the "U" shaped driveway, removed the 
inverted V-snaped exterior stairway and porch from the east wall, built 
a foundation out of concrete blocks underneath a portion of the existing 
building and also a foundation out of concrete blocks for the then 
contemplated addition, remodeled the entire front area of the building, 
built an interior stairway to the second floor front apartment, removed 
the two story barn in the rear of the building, built a two story 
addicion to the tear of the building containing two additional apart= 
m.entb as well as an enclosed stairway to the second floor rear apartment 
at the rear of said building, constructed a concrete walk along the 
east wall of the two story building as enlarged, the southerly end of 
which walk is allegedly on the land in dispute, and sodded the area to 
the east of the sidewalk where the driveway used to be; that all of 
this work was done openly, notoriously and continuously from the date of 
possession to on or about April 1939; that shortly after April, 1939, 
the Interior of the addition was completed; that on October 10, 1938 the 
Suhrs conveyed their property to John Boza; that defendants and their 
predecessors in title have been in actual, open, notorious, hostile, 
continuous and exclusive possession of all of the land from 1902 to on 
or about June 1, 1959, the date on which the bank commenced to pave a 
part of the land and construct a curb at the edge of said pavement, 
thereby attempting to block ingress and egress to the rear of the 
premises as well as to the second floor rear apartment o 



1 



=■6" 

Defendants prayed that the Court establish fee simple title 
in them and issue an injunction directing plaintiff to remove the 
pavement and curb and to refrain from interfering with defendants' 
full use and peaceful enjoyment of the real estate involved « 

Plaintiff filed a reply in the nature of a general denial 
of the affirmative natter set forth in the amended answer. 

The decree confirmed the report and supplemental report of 
the Master in Chancery and an injunction issued restraining defendan'^s 
from using any part of the premises in question, except insofar as 
defendants" building extends on the premises m question and restrain- 
ing defendants from expanding, or extending their building and its 
eaves any furrher over i ne premises in question. The decree further 
eriLered judgnent for $100,00 m favor of plaintiff for alleged 
aescruction of a parr of the curb; and allowed the Master $4<, L.73o90 
for his fees anc charges and to be paid equally by plaintiff and 
oefendants. The decree also dismissed the amended counterclair of 
aetendants,, for wan:' of equity. 

Defendants'^ theory of the case is that the evidence adduced 
at the hearings before the Master in Chancery overwhelmingly supper'. ed 
cefendanrs' position, and that the "Findings of Fact" and "Tne 
Recommendations ana Conclusions" of the Master in Chancery, incorporated 
into the decree by the trial judge, are contrary to the manifest v^reight 
of the eviaence. 

Plaintiff 'is theory of the case is that defendants failed :o 
support their defense and counterclaim of adverse possession by clear, 
positive and unequivocal evidence. 

The essential elements of adverse possession are tna: itie 
possession be coniinuous, hostile, actual, notorious, exclusive, and 
under a claim of ownership or color of title, Cannella v. Dor a n, 21 
111, 2d 514, 173 N,E,2g 512 (1961). Furthermore, there exists a 
presumption of law that an adverse possessor's rights in real estate 



„7.- 

ate subseivient t.o the rights of the record title owners, Superior 

Oil Cotripanv v, Harah,. 126 F.2d 527 (C.A. 7th 1942). 

Plaincitf maintains that there was insufficient evidence 
presented thai the particular property was possessed continuously for 
i he statutory period of 20 years; that the claim of defendants was 
hostile In its inception; that defendants actually possessed all of 
the property in question, or that defendants occupied the property 
under color of title » 

In support of irs contention that defendants did not prove 
essential elements of adverse possession., clearly and convincingly, 
pialntirt first maintains that defendants did not prove that they 
continuous Ly occupied the property in dispute for the statutory period 
in thar defendants by their conduct recognized a superior right in 
plaintiff and its predecessor. We do not find it necessary to answer 
this contention as there are other essential elements that defendants 
failed to prove. 

Defendants failed to prove that their possession v^-zas hostile 
in its inceptiono There was testimony that the Suhrs and defendants 
walked around the bounaary lines and that Mr, Suhr showed or pointed 
out what he thought were the lot lines that were to be conveyed to the 
defendants. Where the adverse claimant acquires and possesses real 
estate, thinking that he is the record title owner, such possession has 
lr»effia held to lack hostility. Wiedrich v. Howard, 7 111, 2d 589; 39- „ 
131 N.E,2d 508 (:i956.). 

Defendants also failed to prove that there was actual 
possession of the property in dispute. Defendants attempted to meet 
the burden of establishing continuous possession by showing that certain 
activities were engaged in over the statutory period. The evidence 
presented by defendants only showed that activities took place on 
various portions of the property for indefinite periods of time. This 
evidence was insufficient to establish actual possession. 



I 



.,8" 

Finally,, defendants did not prove they took the land under 
a claim of ownersnip or color of title, as the boundaries of the tracr. 
were not definitely established at the inception of the statu: ory 
period wi-»h reasonable certainty. The only evidence in the record 
legctrding trie boundaries is testimony that the boundary line was pointed 
O'ut ana walkea over by the Suhrs ; that a red barn protruded 9 or 10 
feet over the line to the east; that wagons were parked ar the east end 
of the barn; and that a driveway had been used by customers of the Suhrs 
.-j.nd Bo^aSo William Suhr testified, however, that he could not with any 
degree of acci^racy identify on a photograph in evidence where the line 
was that: he pointed out and walked over with defendants. 

Defendants" next contention is that plaintiff did not estS-blish 
a prtn'a facie case for injunctive relief. Plaintiff, in order to 
establish a prima facie case, had to show that there was a tort being 
committed by defendants and that it had an inadequate remedy ar law. We 
feel that the Master was correct in arriving at the conclusion tnat an 
encroachment existed and that it was of a continuing nature so that 
plaintiff had an inadequate remedy at law. We feel that the trial court 
was correct, in finding rhat plaintiff established a prima facie case. 

Defendants" next contention is that plaintiff came into eqr-tty 
with unclean hands,, and in support of this contention alleges that 
plaintiff by improving the parking facilities on the property In dispute, 
violated a court order that the parties maintain the status quo. We 
disagree with this contention. The status quo referred to m the ordei 
must be taken in light of the circumstances existing at cne time the 
order was entered. At the time the order was entered the defendants han 
not; claimed any rights by virtue of adverse possession. Thus 5 there was 
nothing definite in the record to show how plaintiff should mai:itain 
the statuo quo. Defendants also allege that plaintiff came into the 
trial court with unclean hands in that it attempted to solve irs dispute 
with defendants over the land as a criminal matter. Defendant Wa:..i:er 



„9" 

Boza appeared before a magistrate as a result of an incident which 
Look place April 1959, when he kicked over a pLank being used in r. r.e 
construction of plaintiff's building. He was found not guilty. This 
criminal matter, however, did not have anything to do with the boundary 
dibpute and ts not a basis for the defense of unclean hands. 

Finally, defendants contended that the decree works a hard= 
ship on them in that they have no access to the rear of their premises. 
We agree with defendants'^ position. Their contention is based on a 
balancing of conveniences doctrine. See Nitterauer v. Pulley^ ^01 111, 
494, 505„ 82 N,E,2d 643 (1949). Pradelt v, Lewis. 297 111, 374, 3^6 
(1921 )„ and cases cited therein. The decree in the lower court 
specif icaily found that the rear of defendants" building be allowed to 
eacroach over plaintiff's property for so long a period of time as 
defendants om\ tne property. We feel that the decree should be modified 
so that nor only defendants' building, but also the sidewalk, on Line 
east siae of said building, be allowed to encroach on the property of 
plaintiff so tang as defendants, or each or any of them, own the 
premises 5 so that defendants have access to the rear of their premises. 
Decree modified, and as modified is affirmed, 

DECREE AFFIRMED, AS MODIFIED, 

BlJRKE. P,J<,„ cind BRYANT, J., concur. 



p 



APPEAL FROM THE 



SUPERIOR COURT OF 

COOK COUNTY 




49618 

LEMONT NATIONAL BANKj 
a banking corporation. 

Plaintiff -Appellee 5 

V. 

WILLIAM BOZA, WALTER ALEX BOZA, 
and EDWARD BOZA, 

Defendants-Appellants . 

ON REHEARING 

MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT: 

The court having considered the Petition for Rehearing, the 

Answer, the Reply Brief thereto and Additional Abstract of Record and 

having reconsidered the original briefs and authorities cited ^ has 

decided to strike the last Paragraph of the Opinion on page 9 and 

substitute the following as the last Paragraph on page 9 of the Opinion; 

"Finally, defendants contend that the decree works a hardship 
on them in that they have no access to the rear of their 
premises. Their contention is based on a balancing of 
conveniences doctrine. See Nitterauer v. Pulley , 401 111, 494, 
505, 82 N.E,2d 643 (1949), and Pradelt v, Lewis , 297 111, 374, 
376 (1921)5, and cases cited therein. After a careful 
examination of the Petition for Rehearing, the Answer, the 
Reply Briefs and rhe Additional Abstract of Record (which had 
been allowed to be filed on motion of the plaintiffs), and a 
reconsideration of the original briefs and authority therein 
cited, we conclude that the decree should be and it is affirmed 
in all respects." 

DECREE AFFIRMED. 



BRYANT, P,J,5 and BURKE, J., concur. 




]LU 



i 



49838 

PEOPLE OF THE STATE OF ILLINOIS 
Plaintiff -Appellee 3 



APPEAL FROM THE CIRCUIT 
COURT OF COOK COUNTY 
CRIMINAL DIVISION 




KING JAMES HANNON3 

Def endant=Appeilant „ 
MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT: 

The appellant in this cause was tried by a jury and found 
guilty of the crime or burglary on February 14, 1964, and after a hearing 
in tTi.it igation and aggravation was ssintenced to 15 to 20 years in the 
Illinois State Penitentiary. The only point raised by this appeal is 
that the indictment was defective by reason of the failure to recite the 
address or the building allegedly burglarized. The appellant cites the 
case of People v. Williaras, 30 111. 2d 125, 196 N.E.2d 483 (1964) which 
held :hat an indictment which charged the defendants with an attenpt to 
break into and enter a factory did not give them sufficient information 
to prepare a defense in that it did not state the address of the factory. 
The Court in that case also held that the defect in the indictment could 
not be helpea by a bill of particulars. 

In that case 5 however 5 the defendants sought to have the 
indictment quashed in the trial court. In this cause, no question of the 
sufficiency of the indictment was raised until this appeal was filed. 
The People cite Peoi^le v. Bremer. 57 111. App.2d 436, 206 N.E.2d ^95 (1965), 
where it was held that the failure to stare the address of the allegedly 
burglarized premises was not a jurisdictional defect in the indictment 
and that such defect was waived by the defendant proceeding to trial without 
moving to quash. People v. Starr. 50 111. App.2d 399, 200 N.E.2d 118 
(1964) and Peop le v. King. 50 111. App.2d 421, 200 N.E.2d 411 (196^) are 
also cited by tne People and are in accord with People v. Bremer , supra. 

It will be seen then, that there is no conflict between the 
case cited by the Appellant and those relied on by the People. In People 
V. Willi_r3„ supra, the defect in the indictment was raised at the proper 



I 



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time, and in the cases cited by the People, the defect was not raised 
until after the trial. The appellant argues that the point was preserved 
by an oral motion in arrest of judgment which was made at the conclusion 
of the trial. This same point was raised in both People v. Bremer , supra, 
and People v. Starr, supia, and in both those cases it was held that this 
was not sufficient to raise the question on appeal. We feel that People 
V. Prohaska, 8 111. 2d 579, 134 N.E.2d 799 (1956) is not applicable here. 
In that case zhe Supreme Court held that an oral motion in arrest of 
judgment can preserve the question for consideration on appeal where no 
demand for a written mot:ion is made. The cases cited by The People show 
that there was no proper ground for arrest of judgment since the appellant 
waived the defect in the indictment when he proceeded "bo trial. Thus, 
there was no proper ground to be preserved on this appeal. The judgment 
of the Court below is, therefore, affirmed, 

JUDGMENT AFFIRMED. 

BURKE, P.J. 5 and LYONS, J., concur. 



I 



49920 

ALBERT W. HEMPEL 



Plaintiff -Appellee and Cross Appellant , 



V. 



HENRY KRUEGER, ELEANOR KRUEGER, DAVID 
KRUEGER and HENRY KRUEGER, As Executor 
of the Estate of ANNA KRUEGER, Deceased, 




APPEAL FROM 

CIRCUIT COURT 

COOK COUNTY 



A 



Defendants-Appellants and Cross-Appellees, 
and 
JOSEPH SIEGEL and SONIA SIEGEL, 

Defendants and Cross -Appellees. 
MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT: 

This action was brought to recover a real estate broker's 
commission based upon the sale of improved realty in Chicago, The jury 
returned a verdict for plaintiff in the sum of $30,300 against the 
sellers and the court directed a verdict for the buyers. The sellers 
appeal from the judgment entered on the verdict and plaintiff, the 
broker, cross-appeals from the judgment entered on the directed verdict 
in favor of the buyers. 

Count I of the amended complaint by Albert W. Hempel, the 
broker, was directed against Henry Krueger, Eleanor Krueger, David 
Krueger, and Henry Krueger, as executor of the estate of Anna Krueger, 
deceased and the LaSalle National Bank as trustee, under a land trust, 
and alleges that these defendants invited plaintiff to procure a 
purchaser for certain real estate owned by them; that he procured and 
introduced to defendants, purchasers ready, willing and able to purchase 
the premises, namely co-defendants Joseph Siegel and Sonia Siegel; that 
after plaintiff had produced these purchasers, these defendants entered 
into an agreement with the Siegels on or about August 26, 1960, for sale 
of the realty and did on September 30, 1960, convey the realty to the 
Siegels and that the plaintiff, through his efforts, is entitled to a 
commission. 



-2- 

Count II is directed against the bank as trustee, the Kruegers 
and the Siegels. This count alleges that these defendants by collusion 
and conspiracy, for the sole purpose of depriving the plaintiff of his 
commission, agreed between themselves to the sale of the property for 
the sum of $600,0003 whicn amount represented the original sell.ing price 
as quoted by the plaintiff, less the approximate price of commission of 
the sale which would have been paid to the plaintiff. Defendants denied 
that plaintiff was invited to procure a purchaser; that plaintiff is 
entitled to a commission; that he procured a purchaser for the premises, 
ready, willing and able to make the purchase and further denied the 
allegations of collusion and conspiracy„ Tne court directed verdicts 
for all the defendants as to Count II at the close of plaintiff s case 
and denied a motion by defendants for a. directed verdict as to Count I, 
The defendants offered no evidence and rested on their motion for a 
directed verdict at the close of all the evidence. The bank as trustee 
was dismissed from the case by agreement because it. held only a naked 
legal title to the realty. 

Plaintiff's theory of the case is that the court properly 
refused to direct a verdict m behalf of the Kruegers since he proved by 
competent evidence that he was the broker who procured purchasers ready. 
willing and able to purchase and was the efficient cause of the purchase » 
The theory of the Kruegers is that plaintiff was not their agent ; that 
he did not produce buyers ready ^ willing and able to purchase the real 
estate; that he was not the procuring cause for the sale of ttrie realty 
and that the trial judge erred in not directing a verdict in their favor „ 

For a long time prior to the occurrence of any event upon which 
this cause of action is based, the Kruegers held a joint beneficial 
interest in an apartment building containing 98 apartments, located at 
the southwest corner of 70th Place and Ogi^esby Avenue, Chicago, one half 
block from the South Shore Country Cxub„ The legal title was held by 
the bank. One of the beneficial owners, Anna Krueger , died on July 25. 



-3- 

1960, and her beneficial interest was willed to Henry Krueger and David 
Krueger . At the time this action was commenced Henry Krueger was acting 
as executor of the estate of Anna Kiueger. deceased. The apartment 
building was offered for sale during the years 1959 and 1960„ Brocnures 
had been printed and were distr ib\.: ed v/ide'.y among real estate brokers 
on the south side of Chicago The plaintiff is a licensed real e^cate 
broker doing business in Chicago. Two of the brochures were admitted 
in evidence as plaintiff s exhlbi:^#^ and #5, Tne plaintiff, as an 
active real estate broker, came into possession of copies of these 
brochures. The following information appears on these brochures: 
specifically in plaintiff ^s exhibit #^ "Real estate brokers recognized. 
For inspection see manager, Mr „ Arthur Richter , or Janitor M: , Joseph 
Copp." Their respective addresses and phone numbers also appear. The 
brochure also states: "If no answer phone Ed Weber WAibrook 5-6500," 
This is the telephone number of Lawn Savings and Loan, operated by one 
of the defendants Henry Krueger, Henry Krueger appeared to be tr.e 
dominant person among the Krueger family, Joseph Siege! is the son of 
Sonia Siegel, a widow. She was conversant with real estate rransaciions„ 
There was evidence that as between her son and herself , she was the 
dominant person. During the spring of i960 and the period thereafter, 
the plaintiff had certain real estate dealings with the Siegels„ The 
Siegels desired him to sell three pieces of property on Ma.ryland Avenue 
which they owned. On July 30, I960,, he consulted the Siegels about the 
possible purchase of the Oglesby Avenue aparimen: building. After 
speaking with the Siegels, plaintiff phoned Mr, Ed Weber vjhose name 
appeared on the brochure and was advised by Weber that the buitding was 
still available and that regular Board commissions would be paid After 
obtaining this information, plaintiff arranged to take the Siegels to 
the premises for a prearranged appointment to view the building with Mr, 
Richter, the manager of the building. On Saturday August 13, 1960, 
plaintiff and the Siegels proceeded to the building and examined the 



I 



-4- 

external portions as well as one boiler room. The following day, 
August 14, I960, plaintiff, accompanied by t be Slegels visited the 
premises with Mr, Richter, the building manager. They looked through 
a series of vacant as well as occupied apartments. They also looked 
at the remaining boiler room. At thar time plaintiff was informed by 
the janitor that the rental income listed on the brochure was not in 
accordance with the actual rentals. After leaving the building the 
plaintiff drove the Siegels to a movie theater and they informed him 
that they were interested in purchasing the building, He advised them 
of the difference in the rentals mentioned by the janitor and stated 
that he would get a tape from Mr, Weber indicating the actual rental „ 
At the time of the transaction the Lawn Savings and Loan Association 
was located at 3525 West 63rd Street in Chicago, Mr, Weber was a loan 
officer at the Savings Association, He was hired by Mrs, Krueger, When 
plaintiff talked to Mr, Weber, plaintiff requested Mr, Weber to regis';er 
the name of Mrs, Siegel, At this time plaintiff told Mr, Weber, 
according to the testimony of Mr, Weber, that plaintiff might have a 
deal on the Oglesby realty if he could sell three of the Siegel '^'s 
buildings . 

On Tuesday, August 16, 1960, plaintiff went to the Savings 
Association and asked Mr, Weber for a tape for the actual rentals, Weber 
told plaintiff that it would take two or three days to run a tape. 
Three days later, August 19,, Weber called plaintiff j who came to Weber's 
office and obtained the tape of the rentals. Plaintiff then delivered 
the tape to Joseph Siegel, Two days later on August 21, plaintiff was 
advised by Joseph Siegel that the tape checked out OK and was then 
advised by both of the Siegels that they were making arrangements to get 
a mortgage so that they could purchase the building. At this time the 
Siegels owned unencumbered real estate having a value in excess of 
$400,000 plus cash assets of $40,000, Approximately two or three days 
after this discussion, on August 22 or 23, plaintiff returned to the 



' 



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home of the Siegels and was advised by Mr ^^ , Siegei that he did noL ha\ e 
an exclusive and^ therefore, she dia not hdve lo buy the bui-Iding throagn 
him. She opened the door and toid niro to leave^ He left^ On August 
26, 1960, four days thereafter, a contract for Lhe sale of the real 
estate was executed by tne Sregei-s ana the Kiuegers and on September 28^ 
1960, a deed conveying title to Soma Siegel and Joseph Siegel was 
executed and delivered^ According to trie applicable rates the commiSbion 
in a transaction of this size woui-d be ^30,J00<, There was evidence that 
it is the custom and practice in the real estate business in Chicago rnat 
the seller pay the commission unless there is an agreement to the contrary „ 
There was evidence that when a brochure of the type introduced witn the 
legend "real estate brokers recognized" that the people who distribute 
the brochure pay the commission. 

The Kruegers^ in arguing tneir position that the court erred in 
failing to allow their motion foi a directed verdict at the clo>t,e of tne 
evidence, say that when a real estate broker acts as agent of the teller 
he is entitled to a commission only if he is trie procuring cause of the 
sale and produces a purchaser who is readv, willing and able to pur»J-ia=eo 
We are called upon to decide whether there is any competent evidence, 
standing alone, together with all reasonable ixiferences to be drawn 
therefrom and taken with intendments most favorable to plaintiff <, which 
tends to prove the material elements of plaintiff s case. 

The parties are in agreement ttiat a real estate broker is 
entitled to a commission from the seller if he procures a buyer reaay, 
willing and able to purchase the property and is the efficient cause of 
the purchase. In our statement of the facts we have considered only the 
evidence favorable to the plaintiff together with all reasonable 
inferences to be drawn therefrom. After inspecting the building Mrs. 
Siegel told plaintiff that if she and her son could buy the building for 
$700,000 they would take it. Plaintiff says that he told Weber that the 
Siegels would purchase the premises for ;?700j000„ Weber did not think 



-6- 

that the sale price was specif Lea i.i.y inenLioned^ He (Weber) said chat he 
had no authority to quote any sale price for the property „ Weber's 
^testimony was to the effect that wn.en plairTtiff came to his office atcer 
the inspection of the piemites pi.aintiit cold him (Weber; chac plaintitf 
might have a deal if he could sell three of Mrs., Siegel's buildings » 
Plaintiff's version of the conversation differs in that he did noi tell 
Weber that a deal by Mrs„ Siegel w^^ld aepenc on p^-aintiff-s success in , 
selling the Siegel properties. 

We think that there was eviaence from which the jury could 
determine that plaintiff was the broker for tne seiiero There wa? evidence 
that the legend on the brochure that real estate brokers would be recognized 
is regarded as an offer to pay a commission to a broker who procure^ a 
buyer for the property listed in che brochure » Tne plaintift informed 
Weber of the name of his intended pur chaser „ Ax\.ording to p,.ainciff s 
testimony Weber said plaintiff would be entitled to a commission it he 
succeeded in making a sale. The position of the Kr^^egers mat plaintiff 
was acting as agent or broker for che Siegel 5 presents a factual isoue 
which was decided by the jury adversely to the Kruegers, The stacemenL by 
Mrs. Siegel when she prempcorily dismi-sed plaincif f ■ -he did not nave an 
exclusive on the building- -indicates tnat ^ns did not contsioer plai./ii.iff 
to be her broker. We do not think tnat there was any impropriety in the 
action of plaintiff in inquiring as to any discrepancy in the renials. It 
is the duty of the broker to honestly negotiate between Ltie parties on 
behalf of the person whom he represents. Although the Siegels were aware 
of the existence of the building prior to being ^.c-ntacted bv plaintiff j, 
they did not previously inspect the building nor indicate an> desire to 
purchase it. It was only through the efforts of praintiff in contacting 
the persons listed on the brochure,, arranging an appointment to inspect the 
building, twice bringing the purchasers to the premises for the inspection 
of the apartments and heating facilities^ that anyone indicated an interest 



tli 



-a 



\ 



_7_ 

in purchasing the buiicling„ Mr. RichLet, Li^e bailding manager, 
indicates that from January 1959, up ^ntii the. time when piaintiff 
interested the SiegeLs in the purchase of the building,, he was not 
contacted by any real estate broker to show a prospective parchaser 
through the building", and during thdt period ne wao the building 
manager and his name was listed on the brQcho.re ab the person to 
contact for such purpose. Although the bxochure had been distributed 
widely among real estate brokers, anc businessmen on the south side of 
Chicago, not once did any broker other than piaintiff produce 
interested parties who came to the premises b;. appointment and inspect 
the premises for the purpose of making a p.irchase„ The jury,, in 
effect, found that plaintiff procured for the Kraegers,, buyers in the 
persons of the Siegels who were ready , willing ana abie to purchase 
the property and who did purchase the proper tv and that plaintiff was 
the efficient cause of the purchase. 

According to the testimony of the plaintiff and corroborated 
by Weber and Richter, on Sunday August 14th,, plaintiff took the 
Siegels on the property for the pij.rpose of mspectiono Two nays later, 
August 16th, plaintiff requested from Mr. Weber, the tape of the actual 
rentals. He was given the tape on August 19th. He brought il to the 
Siegels, On August 21, the plaintiff was informed by the Siegels that 
the tape checked out and that they were m the proce&s of obtaining 
the financing. During the following week, on August 22 or Z3 , the 
plaintiff was advised by the Siegels thai chey wouid not purcna.-^e the 
property through him and they ordered him from their home. During this 
period of time the Siegels owned property free and clear which had a 
value in excess of $400,000, in addition to cash assets of $40,uOO„ 
The ability and readiness of the Siegels to purchase at the time is 
shown by the fact that four days later on August 26, 1960, they entere( 
into a contract to purchase the property with the Kruegers. The Jury 



P' 



I 



-8- 

had ample evidence from which to find that pldintiff wa:- the efficient 

and procuring cause of the purchase by the Sregels, The defendants , both 

the Kruegers and the Siegels„ depiLvea the piaintift of an opporLunity co 

produce a written contract. The\ ate not Ir. a position to cake 

advantage of their misconducto 

In Chicago TitLe ana T:.-5t Ce „ v. Guild, 329 IIl. App. J/h, 

Mr. Justice Bristow, m speaking for the court ^ said, 381°. 

"Where an agent is empioxed to sell real estate for 
the owner or undertakes the employment and is instrumental 
in bringing the owner ana the buver together „ and tne 
owner then concludes the sale at a less price ttian the 
agent was authorized to sell the agent is entitled to 
compensation for his services c" 

We turn to a consideration of the cross-appeal of plaintiff 
from the judgment on the directed verdict on the issues of the second 
count in favor of all the defendanfr and againi-t the plaintiff. This is 
the conspiracy count. We agree with the position of the attorney for the 
Siegels that there is insufficient evidence to prove the elements of the 
charge of conspiracy stated in tne second coant. Trie Kraeger? are not 
in a position to claim prejudice in the trial because of their joinder 
with the Siegels, as there was no move by them for a severance. 

The judgment on the first count for $30,300 in favor of 
plaintiff and against the Kruegers is affirmed cind the judgment on the 
second count in favor of ali. the defendants and against the plaintiff 
is affirmed. 

JUDGMENTS AFFIRMED, 

BRYANT, J., and LYONS, J., concur. 



f 



49908 

MARJORIE E. OLSON, 

Plaintiff -Appellant , 

Iv, 

WILLIAM HOFFMAN, GERRIT HOFFMAN 
and ALBERT KOLB , 




APPEAL FROM THE CIRCUIT 
COURT OF COOK COUNTY, 
COUNTY DEPARTMENT, 
LAW DIVISION. 



Defendants-Appellees . 
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT. 

This is an appeal from a judgment on the pleadings entered 
upon motion of the defendants. Plaintiff sued for personal 
injuries sustained in January, 1959, which she alleged were 
due to a defective hook in the basement of a building in 
which she had leased an apartment. The issue involved is the 
application of an exculpatory clause in the lease executed 
before the passage of legislation prohibiting enforcement 
of such clauses. 

The building in question was owned by defendants, one half 
interest in Albert Kolb and the other half in William Hoffman and 
his wife, Gerrit Hoffman, in joint tenancy. Plaintiff had lived 
there for several years with her husband and upon his death in 
1958 she signed a one-year lease with a provision for termination 
after sixty days' notice. The lease was signed by defendant 
William Hoffman as lessor. It was in a standard form prepared 
by the Chicago Real Estate Board and an exculpatory clause 
exempted the lessor from liability for damages to person or 
property including "all claims arising from the building or any 
part thereof being or becoming out of repair including appurtenances, 
equipment, furnishings, fixtures or apparatus located in the demised 
premises or in the building or premises of which said demised 
premises are a part, or from any act or neglect of Lessor...." 



_2-. 

A jury demand was filed, but the parties stipulated that the court 
without a jury should hear the evidence and determine whether the 
exculpatory clause barred the action. After hearing evidence 
and argument on this issue, the trial court found that the 
clause was a bar to the action and entered judgment accordingly. 

In April, 1959, a statute was enacted declaring that 
exculpatory clauses in private real estate leases are void as 
against public policy and wholly unenforceable. 111. Rev. Stat., 
ch. 80, § 15a (1963) . It has been held that the statute does not 
apply to leases executed before its enactment, Booth v. Cebula . 
25 111. App. 2d 411, 166 N.E.2d 618, and this interpretation is 
not challenged here. Thus the case is governed by the law as it 
stood prior to the act. The validity of exculpatory clauses in 
apartment leases was upheld in O'Callaghan v. Waller & Beckwith 
Realty Co . , 15 111. 2d 436, 439-440, 155 N.E.2d 545. The court 
rejected the argument that disparity in bargaining power between 
landlords and tenants made enforcement of such clauses uncon- 
scionable, stressing that "The relationship of landlord and tenant 
does not have the monopolistic characteristics that have charac- 
terized some other relations with respect to which exculpatory 
clauses have been held invalid. There are literally thousands 
of landlords who are in competition with one another." Further- 
more, said the court, "No attempt was made upon the trial to show 
that Mrs. O'Callaghan was at all concerned about the exculpatory 
clause, that she tried to negotiate with the defendant about its 
modification or elimination, or that she made any effort to rent 
an apartment elsewhere." 

In the instant case, plaintiff presented evidence that she 
and her son, a real estate accountant, failed in their efforts to 



I 



' i)i:. =!■■ :, 



» ■- ' : 



-3- 

find adequate housing elsewhere at lower cost. The son testified 
that at the time in question the Chicago area was undergoing a 
shortage of housing. On the other hand, one of the defendants 
testified that he observed "For rent" signs all around the 
neighborhood. Plaintiff admitted discontinuing the search 
after signing the lease, although her tenancy was subject to 
termination on sixty days' notice. Significantly when the lessors 
had insisted on a written one-year lease, plaintiff bargained 
for and obtained the termination clause, but made no attempt to 
modify or eliminate the exculpatory clause. Examining the record, 
the court below failed to find in the social position or relation- 
ship of the parties anything that would support a finding that 
the clause is unenforceable. Nor are we able to do so. 

Plaintiff argues that the clause if valid does not apply 
to injuries in the basement area. In Moss v. Hunding . 27 111. 
App. 2d 189, 169 N,E.2d 396, we held that a similar clause did 
not bar an action for injuries suffered by a tenant while she 
was an invitee in the separate apartment of a fellow tenant. 
The governing consideration was that although injuries anywhere 
within the building were covered by the words of the clause, the 
plaintiff was not injured in her status as a lessee but as an 
implied invitee of the lessor. Plaintiff in effect urges that 
we decide as a matter of law that she was in the basement as an 
invitee of the lessors rather than as a tenant in exercise of 
rights under the lease. Whether use of particular areas apart 
from the demised premises is an appurtenance to the leasehold 
is primarily a question of fact. Patterson v. Graham , 140 111. 
531, 535, 30 N.E. 460; Fuchs v. Koropp . 151 111. App. 612; 51 
C.J.S. Landlord and Tenant § 293 (1947), The parties waived a 



„4- 

jury and submitted evidence for a determination of the separate 
issue of the effect of the clause, and the court after considering 
Moss V. Hunding , supra , found that "there is no question but that 
the exculpatory clause here covers the area in question." Implicit 
in the finding must have been the conclusion of the court that the 
plaintiff was in the basement in the exercise of her rights under 
the lease rather than as an invitee of the landlord. The finding 
is not against the manifest weight of the evidence. 

The plaintiff argues that exculpatory or indemnification 
clauses which are ambiguous are subject to strict construction 
when active negligence is involved. Cairnes v. Hillman Drug Co . , 
108 So. 362 (Ala. 1926); cf.. Westinghouse Elec. Elevator Co. v. 
LaSalle Monroe Bldg. Corp ., 395 111. 429, 70 N.E.2d 604. In the 
instant case there is no ambiguity as to this aspect of the 
exculpatory clause. It applies to injuries resulting not only 
from passive negligence or disrepair but from "any act or neglect" 
of the lessor. - - 

/ 

Plaintiff also contends that the clause does not protect 
the defendants Gerrit Hoffman and Albert Kolb since they did not 
sign the lease. Our law is clear that a non- signing owner may 
receive protection from an exculpatory clause if he is sued in 
his capacity as lessor. Booth v. Cebula , 25 111. App. 2d 411, 
418, 166 N.E„2d 618; Menge v. Liberty Natl. Bank , 36 111. App. 2d 
61, 183 N.E.2d 567. To distinguish these cases, the plaintiff 
relies on Koehler v. Southmoor Bank & Trust Co ., 40 111. App. 2d 
195, 189 N.E.2d 22, where beneficiaries of a land trust were sued 
for injuries to a tenant using trust property of which they had 
possession and control but no legal or equitable interest in 
the title. The case against the beneficiaries was based on their 



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i .. ." :j: 



^5- 

possession and control. The lease, which they did not sign, con- 
tained an exculpatory clause, similar to that here, protecting 
"Lessor and Lessor's agents." This court held that the benefi- 
ciaries were not protected by the clause since they were not 
lessors or agents within its intendn\ent , Here it is uncontested 
that all three defendants own the legal interest in the real estate 
and are being sued in their respective capacities as lessors. 
Indeed Albert Kolb's name appears on the face of the lease and 
he testified that William Hoffman ordinarily signed the leases. 
The elaborate mechanisms of secrecy found in the land trust cases 
are here wholly absent. See Koehler v. Southmoor Bank &. Trust 
Co., supra , at 199. 

The judgment is affirmed. 

Judgment affirmed. 

v., 

Dempsey, P.J,, and Sullivan, J., concur. 
Abstract only. 



p 



50020 

VIRGINIA VAN CURA, HELEN DONNA 
OTT, and GEORGE BLOZIS , Executor 
under the Last Will and Testament 
of PAULINE DRANGELIS, Deceased, 

Plaintiffs-Counter Defendants, 

Appellees, 



V. 



C^6-X-^^^^ 



Appeal from the 
Circuit Court 
of Cook County. 




KAZYS DRANGELIS, 

Defendant-Counter Plaintiff, 

Appellant, 

MR, PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT, 

This is an appeal from a declaratory judgment which construed 

an antenuptial agreement against the defendant Kazys Drangelis. 

In 1950, a day before their marriage, Drangelis and 

Pauline Paukstis entered into an agreement concerning Mrs. 

Paukstis' property. In 1952 Pauline Paukstis Drangelis signed 

a will leaving her real and personal property to the plaintiffs 

Virginia Van Cura and Helen Ott, the daughters of her first 

marriage, Pauline Paukstis Drangelis died in 1961 and a dispute 

arose between her husband and the daughters concerning their 

respective interests in her property. The daughters and the 

executor of their mother's will thereupon filed a suit for 

declaratory judgment seeking a settlement of the controversy 

and the construction of the antenuptial agreement. 

At the time of the agreement Mrs, Paukstis owned and 

resided in a two-story building at 2642 West 63rd Street, 

ChicagOo She also had an interest in a building containing 

a tavern and an apartment at 4171 South Halsted Street, Chicago. 

After the marriage she and the defendant lived in the 63rd 

Street building. Her will devised this property to her daughter 



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2- 

Virginiao In March 1952 ahe and her daughter Helen^ as joint 
tenants., leased the Halsted Street building for a term of 36 
years o Her interest in the Halsted Street property was devised 
CO Helen. Drangelis' defense to the declaratory judgment action 
was on the principal ground that the agreement (in which he 
specifically waived whatever rights he might acquire in Pauline 
Paukstis- personal property and in the Halsted Street property) 
did not include a waiver of interest m her 63rd Street property. 

After various pleadings had been filed the plaintiffs 
moved for summaty judgment o Their motion was granted and the 
^ judgment was entered. Drangelis appealed and this court reversed 
the judgment and remanded the cause. Van Cur a v. Dr angel is, 
H-3 Ilio Appo 2d 205s 193 N.E.2d 201. 

In our prior opinion we noted that the antenuptial 
agreement (which is set out in fall in the opinion) was ambiguous 
and required extrinsic evidence to ascertain its true intent. The 
agreement provided that Drangelis waived his rights to all 
personal property; that Pauline Paukstis retained aJUL the 
property she possessed^ the same as if she had not married, 
and that Drangelis waived aJJ. interest he might acquire through 
tr.arriage. We stated that although the agreement stressed personal 
property,, the reference to all property and the waiver of all, 
interest which might be acquired by marriage , weakened the 
emphasis and strongly suggested that the agreement was not 
meant to be restricted to personalty. We observed that the 
nature of Pauline Paukstis" interest in the Halsted Street 
property was unknown to us; that the record was not clear whetner 
this interest was in personal propertj; c, a ctiattel-real „ or in 
real property, and that learning what this interest was might 
throw light on whether the agreement was meant to apply to 



4. 



= 3= 

personal property only or to personal and real property. We 
remanded for further proof,, if such was available and if the 
parties desired to present ito 

When the case was tried after retnandment the plaintiffs 
introduced evidence showing that at ttie time the prenuptial 
agreement was executed Pauline Paukstis" interest in the Halsted 
Street property was that of a lessee under a long term leasehold^ 
that she had improved the premises with a building and that the 
lease provided she had the privilege of removing the building 
during the final 60 days of the lease. They also introduced 
the testimony of several witnesses,, including the defendant's 
brother and sister-in-law,, who heard Drangelis say to his 
stepdaughter Helen Ottj at the wedding dinner following his 
marriage to her mother, that he had assigned all rights, property 
and assets to Pauline, his wifeo 

At the conclusion of ail the evidence the chancellor found 
that the interest of Pauline Paukstis in the Halsted Street 
property was a chattel-real and constituted real estate at the 
time the antenuptial agreetrient was executed; that the provisions 
in the agreement were applicable to her real estate as well as 
her personal property and that by the valid and enforceable 
agreement Drangelis had waived dower and all other right and 
, interest in both her personal and real property, A decree 
was entered which held that upon the death of Pauline Drangelis 
her daughters became the owners of her entire estate.. 

The defendant contends again in this appeal that the ante- 
nuptial agreement did not include the 63rd Street property. He 
further contends that the trial court erred in construing the 
^ agreement to include this' property^ that the admission of parol 




f 



-4- 

evidence and other extrinsic evidence to aid in the interpreta= 
tion of the agreement was improper and that the court, during the 
course of the trial „ disregarded the rules of practice and procedure. 

We find no merit in any of these contentions » A contract 
which is subject to more than one interpretation may be explained 
by extrinsic evidence so that the true intention of the parties may 
be learned. Pes Plaine.-s Motor Sal^s„ Inc. „ v. Whetzal. 58 111. \pp. 
2d 1^3^ 206 N,Eo2d 806. In oar prior opinion we found that the agree- 
ment in dispute was ambiguous and that it required extrinsic or parol 
evidence as an aid to its complete understanding. We directed the 
trial court to hear such evidence if it was produced by the parties „ 
and it would have been error had the court not done so. Where a case 
is reversed and remanded the questions of law decided in that case by 
the Appellate Court are binding on the trial court. Curran v. Harris 
TtuBt and S avln^a„_Bank „ 13 HI. App, 2d 430, 142 N,E.2d 183. 

The principles of construction which govern contracts are 
equally applicable to antenuptial agreements. The property rights of 
a spouse acquired through marriage will not be taken away by an 
antenuptial agreement unless the intention to relinquish these rights 
is clearly apparent. The additional proof offered by the plaintiffs A 
was properly received in evidence and by it all doubt as to the Y 
meaning of the agreement and the intention of the parties was resolved. 
T^ The chancellor's construction of the agreement will not be disturbed. ^ 

We further find that no erro^r^w^as committed by the court in 

regard to the rules of practice or the pif.->cedure of the trial. 

■'~--. '"->-.. 
The decree of the Circuit Court is affirtnsid. v. 

Af f irmed . '"■^— ^ 

Sullivan and Schwartz, JJ. „ concur. "v ^^ 

Abstract only. 



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NO. 64-141 - NO. 64-142 



0^^ r^n^f^ ) 



IN THE 
APPELLATE COURT OF ILLINOIS 
SECOND DISTRICT 



Abstract 



Abs 




fiWIi 



NOV 22 1965 
HOWARD K. KELLETT 



HOWARD H„ MEYERS and 
MARY K. MEYERS, 



Plaintiffs-Appeilees, 



vs. 



ROBERT VINCENT and 
ELLEN VINCENT, 



Defendants-Appel lants . 



Appeal from 
Circuit Court 
of the 17th 
Judicial Circuit, 
Winnebago County, 



MR, JUSTICE MORAN delivered the opinion of the Court. 

The present cases involve the same questions of law and fact and 
have been consolidated in this Court for hearing. Involved is a certiorari 
proceeding to test the validity of a forcible entry and detainer proceeding 
had in Justice Court. The trial judge granted a motion to quash the writ of 
certiorari and this appeal followed. The errors raised by the defendants are 
either nonexistent or have been waived and it is our judgment that the 
decision of the trial court should be affirmed. 



In April of 1961 the plaintiffs entered into a contract to sell certain 
premises in the City of Rockford to the defendants. The defendants were to 
make payments of $100.00 per month commencing May 1, 1961. By 
November, 1962, nineteen monthly payments had fallen due, but the 
defendants had only paid $953.00. In addition, the defendants had failed 
to pay the 1961 real estate taxes as required of them by the agreement. 
Plaintiffs served notice of intention to cancel the agreement and after the 
expiration of more than thirty days, plaintiffs served a notice of cancellation 
and a demand for immediate possession. Still the defendants failed to pay 
and finally in January, 1963, the plaintiffs filed a complaint for forcible 
entry and detainer in a Justice Court in Winnebago County. Summons was 
issued and personally served upon the defendants. Subsequently, the 
defendants filed a general appearance by an attorney representing them at that 
time. The defendants failed to appear for trial and an order was entered dis- 
possessing the defendants and restoring possession to the plaintiffs. A writ 
of restitution was then issued and personally served upon the defendants. 
Thereupon the defendants initiated a Petition for Writ of Certiorari in the 
former County Court of Winnebago County. The writ was issued the same day 
and a transcript of the Justice Court proceedings certified to the County Court. 

The plaintiffs filed an affidavit made by the former attorney for the 
defendants. A motion to strike this affidavit was denied. In the oral argument 
before this Court the plaintiffs' attorney stipulated that we should not consider 
the affidavit. Our decision is reached without any consideration of the 
affidavit and, therefore, we do not rule on the propriety of the trial court's 
decision on the motion to strike. 

Subsequently, the trial court denied the defendant's motion to dismiss 
the original action in forcible entry and detainer and granted a motion of the 



-2- 



plaintiffs to quash the Writ of Certiorari and to order the justice of the peace 
to proceed with the original action. The propriety of this order is before us 
today. 

The defendants contend that the Justice Court proceedings were null 
and void because the complaint was not signed by the plaintiffeand the summons 
and writ of restitution were not signed by the justice of the peace. The fact is 
that the summons and writ of restitution contain the rubber stamp facsimile 
signature of the justice of the peace and both were personally served upon the 
defendants. The defendants filed a general appearance in the Justice Court 
and thereupon waived their right to raise these questions. Counsel does not 
suggest how the defendants could possibly be prejudiced by the fact that the 
justice of the peace stamped his name rather than signing it. Indeed it is hard 
to imagine any detriment. Be that as it may, the filing of a general appearance 
lays the question at rest. 

The defendants next contend that the trial court should have held a 
trial de novo in the certiorari proceedings. Unfortunately, this was not 
counsel's position in the trial court. In a motion to strike filed in the trial 
court, counsel said, "On certiorari the review is confined to questions 
disclosed by the record relating to the jurisdiction of the inferior court or 
tribunal,or the proper exercise of such jurisdiction." Counsel persisted in 
his theory and in the same pleading said, "In ascertaining whether or not the 
inferior court or tribunal had jurisdiction and proceeded regularly in making 
the determination complained of, the reviewing court is confined to the 
consideration of the record returned in obedience to the writ,by which the 
error, if any, must appear." 

Dissatisfaction with the result obtained on one theory does not 
authorize counsel to switch theories in this Court. Having insisted that he 
was not entitled to a trial de novo in the trial court precludes counsel from 
seeking it in this Court. Counsel cannot create error in trial and then rely on 
it on appeal. 

-3- 



Lastly, the defendant contends that the transcript filed by the 
justice of the peace is inadequate. "Where the record is incomplete, 
a reviewing court will indulge every reasonable presumption in favor of a 
judgment or order. Any doubt arising from the incompleteness of the record 
will be resolved against the appellant." McGann v Lurie, ISIII.App. 2d 
297, 300 (1957). 

We conclude that the trial court was correct and the judgment is 
therefore affirmed. 

JUDGMENT AFFIRMED 
Abrahamson, P. J., and Davis, J., concur. 



50052 



AP""- 



PEOPLE OF THE STATE OF ILLINOIS, 
Plain tiff -Appellee, 



(6S j:.A.^f59 ) 



vs. 

EDWARD LEE LYONS, 

Defendant-Appellant . 




APPEAL FROM 

CIRCUIT COURT 
COOK COUNTY 
CRIMINAL DIVISION. 
MR. PRESIDING JUSTICE McCORMICK DELIVERED THE OPINION OF THE COURT. 

The defendant, Edward Lee Lyons, was charged with the crime of 
armed robbery. Found guilty in a bench trial and sentenced to a term 
of imprisonment of four to ten years in the State Penitentiary, he 
appeals from that finding and prays that the judgment of the trial 
court be reversed on the basis that he was not proved guilty beyond 
a reasonable doubt. 

The facts of the robbery are not in dispute. The only question 
is whether or not the People sustained the burden of proving that 
Lyons was a participant in that crime. 

On June 15, 1963, at about 6:00 p.m., two men wielding nickel= 
plated revolvers robbed the Regal Shoe Store, 6341 South Halsted 
Street, Chicago, They held Anthony Shafala and Gus Golvostis 
(manager and assistant manager of the store) at gunpoint and took 
two pairs of size 12 shoes, two pairs of size 10-1/2 shoes, 20 to 
30 pairs of socks, two transistor radios, and approximately $220.00 
in cash, including $60,00 from Golvostis and $30.00 from Shafala. 
The robbers moved around the store in full sight of the victims, 
addressed several remarks to them, and questioned them several times 
to find out if there was a safe on the premises. Neither robber wore 
any apparent mask or disguise, and the victims had the opportunity of 
observing the features, manners, and voices of the criminals for half 
an hour, according to the testimony. The robbers fled after shutting 
the two victims in a bathroom. There were no other known witnesses 
to the crime. 



-2- 

Gus Golvostis, one of the complaining witnesses, testified to 
the above story. He further testified that he had never seen the 
defendant before the time of the robbery, and that about three to 
five days after the holdup he and Shafala went to the police station 
and viewed some two thousand "mug shots" before seeing a picture 
which caught their attention. At that point Golvostis said, "I be- 
lieve that this is one of the men." The attending police officer 
asked, "Aren't you positive?" The witness replied, "On the side 
view picture 1 am positive, but on the face picture 1 am not . « . 
[b]ecause the man there in this picture^ here, has got glasses on. 
At the holdup there was no glasses involved." The glasses in the 
picture were dark-rimmed, with normal rather than very thick lenses. 

On Sunday morning, June 30, 1963, fifteen days after the robbery, 
the police called Golvostis and told him to come down to the police 
station to see if he could identify any of the men the police were 
holding. Five men, including the defendant, were in the lineup; 
they were of the same race, but possibly of different sizes. The 
defendant was not wearing glasses. The police did not indicate 
which man in the lineup was the suspect, but during a 15- to 30=- 
minute period they asked each man in the lineup to state his names 
address, and the reason he thought he was there. The witness testis 
fied: "This defendant was standing in the lineup in the middle 
The officer never said a word to me, sir, about any defendant standi 
ing in the middle . , . ." It should be noted that the witness 
heard the voice of the accused when the men gave their names and 
addresses. He recalled that the robbers had been in his store for 
"a good half hour." The defendant had asked for the size 12 shoes; 
his partner had asked for the smaller size. Neither robber speci- 
fied width. 



o o o 



-3- 

The other complaining witness, Shafala, testified at the trial. 
He denied that the police had indicated the defendant as one of the 
men standing in the lineup on June 30, 1963, He recalled that he 
had made a tentative identification on June 18, at the police sta- 
tion, from a photograph which had the defendant's name and brief 
history. The witness barely recalled that the history had mentioned 
something about a former conviction . On cross-examination the wit- 
ness testified that the police had only asked him to come down to 
view a lineup but had not told him that they had caught the man who 
held up the store. 

The defense presented one witness~-Of f icer James Wright-— who 
testified that he was assigned to investigate the robbery and had 
received a note a few days after the crime advising that the victims 
had tentatively identified Lyons as one of the robbers. On June 27 
or 28 Officer Wright obtained a different picture of the defendant 
from the Bureau of Identification, included it with a variety of 
pictures and went to the shoe store, Shafala was present and he 
picked out the picture of the defendant „ The picture did not show 
Lyons wearing glasses and was different from the picture Shafala had 
originally seen when he viewed photographs on June 18, Golvostis 
arrived later and he, too, selected the picture of the defendant 
from the other photographs. Officer Wright then returned to the 
police station and later arrested the defendant. Officer Wright did 
not find a gun, any new shoes or socks at the defendant's apartment. 

The defendant testified in his own behalf. He had been paroled 
while serving a term for armed robbery and had left the penitentiary 
in December of 1963 [sic]. He denied being in the vicinity of 63rd 
and Halsted Streets in Chicago on the day of the crime. He stated 
that he had not held up the shoe store and that he had never seen the 
two complaining witnesses prior to June 30, 1963, He further testi= 
fied that he did not own a nickel-plated revolver and did not have a 



m 



-4- 

revolver in his possession on the day of the crime. He stated that 
he was in the Checker Cleaners at 63rd and Wentworth— about 18 blocks 
away from the scene of the crime— at 6:00 p.m. on June 15; that he 
had not played cards that day but had played checkers; that he had 
been visiting with a girl there and had been in and out of the cleaners 
and the barber shop next door from 3:00 to 7:00 p.m. on the afternoon 
of the crime. He remembered that one of the men who had been in the 
barber shop was a Mr. Wyatt and another was Otis, the barber. There 
had been two barbers there and several men who came in and out of the 
shop that afternoon. He testified that he wore size 13-B shoes and 
could not wear size 12. After he was taken to the police station he 
was placed in a lockup, then into a lineup which was held in the 
lockup, "not like a regular lineup." The two complaining witnesses 
then came in together and viewed the men in the lineup. The witness 
testified that this was the first time he had ever seen either of 
them. The police asked him his name and address and his opinion as 
to why he was there. He replied that he did not know. He turned 
around two or three times in the lineup, and the complaining witness 
came up and touched him on the back of the shoulder. 

Officer Wright was recalled to the stand on behalf of the 
People and testified that when he asked the defendant what he was 
doing at the time of the robbery he replied he had been playing 
cards in the barber shop. Officer Wright further testified he had 
not told the defendant to remove his glasses in the lineup. 

The defendant cites People v. McPheron . 354 111, 381, 188 NoE. 
470, to support his theory that he was adjudged guilty solely on 
the identification of two eyewitnesses, that there was no other cor- 
roborating evidence in the record, and that this is insufficient to 
sustain the burden of proving him guilty beyond a reasonable doubt « 



-5- 

He cites People v. Sanders . 357 111, 610, 192 N,E. 697, which case 
holds that where a witness is told in advance of the identification 
that the guilty party is in the custody of the police, and the pris- 
oner is produced alone for the purpose of identification, the weight 
of evidence as to identification is impaired. He also cites People 
V. Gooden . 403 111. 455, 86 N.E.2d 198, and People v. Gold . 361 111. 
23, 196 N.E. 729, to support the view that a witness who has viewed 
the image of a defendant's face in a photograph might be subsequently 
influenced by what he remembers from the photo, and that the witness 
should have no reasonable doubt as to the correctness of his identic 
fication. 

In the cases the defendant cites, the convictions were set aside 
for either of two reasons: 1) Other evidence raised a reasonable 
doubt as to the defendant's guilts People v. McPheron . supra „ where 
the defendant brought in 12 witnesses, 11 of whom testified that the 
defendant was 14 miles away from the scene of the crime at the time 
the crime was committed; People v. Ricili . 400 111. 309, 79 N„E„2d 
509, where the criminal drove a car and where several defense wit- 
nesses testified that the defendant did not ever drive or know how 
to drive a car; People v. Gooden . supra » where five witnesses cor- 
roborated defendant's alibi that he was sick in bed on the day of 
the crime; and People v. Gold , supra . where several defense wit- 
nesses supported defendant's alibi. In the instant case we have 
only the defendant's uncorroborated alibi testimony, 2) There was 
little or no opportunity for the witness to observe the accused: 
People V. Gold , supra . where the eyewitnesses had only a fleeting 
look at the criminal; People v. Sanders , supra , where eyewitnesses 
to the crime said one co-defendant was not one of the holdup men, 
and the co-defendant was identified while alone, almost three years 
after the crime, and no testimony was given as to any identification 



r- 



.6» 

of his voice, mannerisms , scars ^ injuries or clothing 5 and where the 
witnesses contradicted each other; People v. Grizzein 382 111. II ^ 
46 N,E,2d 785 where there were no eyewitnesses since the complaining 
witness could not see his attackers ^ where the People's witnesses at 
no time identified the defendants as being directly connected with the 
crimes and where there was only weak circumstantial evidence to link 
defendants with the crime„ In the instant case the two eyewitnesses 
had the opportunity of observing the defendants for a half hour,, 
The criminals wore no masks nor any disguises g and they talked at 
considerable lengtho Defendant Lyons was identified in a relatively 
short time after the robbery ^ both on the basis of his facial char- 
acteristics and his voice 5, and was identified, by both eyewitnesses 
from separate pictures at separate times ^ as well as in the lineup. 

The evidence of the defendant is not of the quantity or quality 
as that in the Supreme Court cases cited by him„ The trial court 
found that the evidence of the defendant did not support his alibi. 
The defendant argues that the failure of the police to find any of 
the stolen items or the gun in his roomc, plus the fact that the de- 
fendant wears a shoe larger than those stolen j, are facts which are 
sufficient to raise a reasonable doubt „ The trial court considered 
those factors and found the defendant was guilty. 

On the basis of the record and the lawj we cannot say that the 
defendant was not proved guilty beyond a reasonable doubt. The 
judgment of the Criminal Division of the Circuit Court of Cook 
County is affirmed. 

AFFIRMED. 
DRUCKER, J., and ENGLISH^ J.p concur. 
Publish abstract only. 



~^^ hsi:raC' 



.^ 



.--' f I V 



n/^'^ 



J^\ 




STATE OF ILLINOIS 

APPELLATE COLT^T 

POL^.TH DISTRICT 

General IIo. IO626 

Ovren P. Carter, 

Plaintiff -Appellee 
vs. 
Montgomery llard & Co., Incorporated, 

Defendant -Appellant 



{^j:-/p^/6'j, 



AaendB. No. 10 




Appeal fror.a 
Circuit Court 
Vermilion County 



TRAP?, J. 

This is an appeal from a judgment of the Circuit 
Court of Vermilion Ccunty, Illinois, in favor of the 
plaintiff, in the amount of $1,630.00. The suit, heard 
before a jury, v;as for personal injury resulting from a 
fall received by plaintiff in the defendant's store 
occasioned by plaintiff's stepping upon a drill bit on 
the floor near the hardware counter. 

Defendant asserts as error, (1) the failure of the 
trial court to direct a verdict in its favor, (2) alternative- 
ly, the failure to declare a mistrial, (3) the failure to 
grant a nevj trial upon consideraticr. of the v^eight of the 
evidence and (4) erroneous rulings in giving and refusing 
instructions. 



-1- 



As to the first alleged error^ defendant says that 
\'/ith respect to the presence of the drill bit on the floor, 
there is no evidence that defendant knev;, or should have 
knovm that it x>:as there, or that the defendant caused it 
to be upon the floor. 

Since alraost every statement of fact Liade by 
plaintiff v;as disputed by the defendant, and since de- 
fendant contends alternatively that the verdict is against 
the manifest v;eight of the evidence, it is necessary to 
reviev; the evidence. 

Plaintiff, a 63 year old man, testified that he 
went to defendant's store on November 9> 1961, about 10:30 
A. M. , to purchase an electric switch. He purchased it 
from a tall blond yo-ong male cleric v^ho vras v/orking with a 
pasteboard box at the hardware department. Merchandise 
is displayed on counters in compartments separated by glass 
dividers. Plaintiff made his purchase and turned past the 
hardv;are counter when he stepped on a drill bit -^ inch to 
■} inch in diameter and 6 or 7 inches long, slipped and fell 
on his back. Another customer hj the nam.e of Wallis came 
over from the paint department and helped plaintiff to his 
feet. The young clerk asked him if he took a pretty good 
fall and if he hurt himself. Plaintiff said he didn't 
knov/. 



-2- 



The plaintiff did not see any customers other than 
Mr. Wallis in the store baseraent v:here he fell. He only 
saw Ruby ^'[ischer, head of the sports department, and the 
young clerk. Plaintiff v;as not absolutely sure the day he 
fell V7as November 9th, but it vras the last of the week, prob- 
ably Thursday or Friday. Plaintiff was not sure of \'jha.t 
the yoiing clerk v;as doing with the pasteboard box he had 
been working with before he sold plaintiff the electric switch. 
He did testify, hov:ever, that the clerk v;as at the hardv:are 
department first vrith the pasteboard box, then came over to 
the electric department to sell him the sv/itch and then 
went back to the hardvrare department. The aisle in which 
plaintiff fell was along the hardware counter. Metal drill 
bits were on display for sale in the hardware department on 
November 9^ 1961. The young clerk picked up the drill bit 
after the accident and put it on the counter. 

Mr. George ¥allis testified that he was in defendant's 
store on the morning of November 9^ 19^1^ at the paint de- 
partment. There were no clerks there and he X'/as walking 
around. He sav/ the plaintiff fall and V7as about 15 feet from 
him when he fell. V/hen he saw plaintiff fall, he heard a 
noise and the drill bit plaintiff stepped on went over and 
and hit the counter and bounced off. He sav; the drill bit 
on the floor and sav: the clerk pick it up. Mr. Wallis testi- 
fied that the clerk had a cardboard box and he was taking 



-3- 



merchandise out of the box and putting it in "bins on the 
counter. From the time Mr. 'Wallis got in the basement 
until the fall, he sav; only one clerk and saw no customers 
besides plaintiff and himself. After the clerk picked up 
the drill bit he went back to what he was doing, taking 
things out of the carton and putting them on the hardware 
counter. 

A Mr. Harold Yeazel, sales manager, testified that 
only he and a Mr. Hox^ell, operating manager, ever replen- 
ished the bins and he was not doing it that day. V/hile 
Mr. Yeazel first excluded the possibility of a young man 
of the description given by plaintiff and Mr. Wallis, it 
became apparent on cross-examination that his recollection 
was imperfect. 

The reported cases of injury from falling on the 
floor in a store are myriad. See 6l A.L.R.2nd 6. The 
rules involved, hov^ever difficult of application, are 
simple. The premises must be kept in a reasonably safe 
condition for business invitees, but the occupier of the 
premises is not an insurer of the safety of the visitors. 
In addition to the presence of the obstacle, -substance, or 
debris on the floor, there must be some evidence that de- 
fendant v:as responsible for its presence, or that the 
article or object had been present for a sufficient length 
lof time that defendant should Icnow it v/as present. Addition- 



_4- 



ally, the usual rule with regard to contributory negligence 
would be applicable. 

Defendant, in support of its motions for directed 
verdict, for judgment notwithstanding the verdict and for 
new trial, relied upon six cases. In Jones v. Kroger '■ 
Grocery and Baking Co. , 273 HI- App. I83, I86, where a 
small piece of spinach on a well lighted and otherwise clean 
floor caused plaintiff to fall, the court found there v;as 
no basis for finding negligence based solely on the presence 
of this small amount of spinach. In Dietz v. Belleville 
Co-op Grain Co. , 273 111- App. l64, the court found that 
the presence of a piece of sheet iron 2 feet long, 2 inches 
wide and l/l6th of an inch thick did not create a dangerous 
condition in a parking lot. In Schmelzel. v. Kroger Grocery 
and Baking Co . , 3^2 111. App. 501 on 506; 96 N. E.2d 885, 
the court found that the presence of a small vegetable 
leaf on a v;-ell lighted and otherwise clean floor did not 
establish negligence. In Antibus v. W . T . Grsint Co . , 297 
111. App. 363^ where plaintiff slipped on a banana peel 
on a staiivay of a general merchandise store, the court 
directed a verdict for defendant because there was no proof 
as to defendant's knowledge of the presence of the peel. 
In dinger v. Great Atlantic and Pacific Tea Co ., 21 111. 
2d 469; 173 N. E.2d 443, the court found that the presence 
of a sweet sticky substance on the floor was not properly 



-5- 



-J\J\J J -> 



related to products sold by defendant even though it was 

established that defendant sold a cough medicine, which 

was a sweet sticky substance, at a counter near this place. 

In Wroblewski v. Hillman's, Inc. , 43 111. App.2d 246, 248- 

49j 193 N. E.2d 470, where a customer slipped on a vegetable 

leaf near the checkout counter, it vms held, in the absence 

of evidence that it was dropped by defendant's servajits, 

that a verdict should have been directed. 

¥e are of the opinion that the present case comes 

within the rule given in Donoho v. O'Connell's, Inc. , 13 

111. 2d 113, at 122; l48 N. E.2d 434, cited with approval 

in Olinger v. Great Atlantic and Pacific Tea Co. , 21 111. 

2d 469 at 475-76; 173 N. E.2d 443: 

"t/here, however, in addition to the 
fact that the substance on the floor was a 
product sold or related to defendant's 
operations, the plaintiff offers some fur- 
ther evidence, direct or circumstantial, 
however slight, such as the location of the 
substance or the business practices of the 
defendant, from which it could be inferred 
that it was more likely that defendant or 
his servants, rather than a customer, dropped 
the substance on the premises, courts have 
generally allowed the negligence issue to 
go to the jury without requiring defendant's 
knowledge or constructive notice*" 

Here, a drill bit, which was a product sold by defendant, 

was on the floor next to the hardware counter where such 

bits were displayed in open bins, and, at a counter where 

there is some evidence that a clerk was replenishing the 



-6- 



hardware bins, on an occasion where only two clerks were 
in the basement and only two customers, neither of which 
customers had previously been near the bins. This vrould 
constitute sufficient circumstantial evidence from which 
a jury might properly conclude that the article was dropped 
by defendant's servant and, perhaps, that it should have 
been noticed hy defendant's servant if he didn't drop it. 

A drill bit is a dangerous item to have vinderfoot 
and it is not necessarily so obvious that plaintiff would 
be charged with negligence in failing to see it. . 

In none of the cases cited by the defendant was 
the product found on the floor identified as a product 
sold by defendant at a counter near where it was foimd, 
at a time when a clerk vj-as replenishing stock, and at a 
time when neither customers nor other clerks were in the 
area where the object vras found. 

We think the trial court acted properly in sub- 
mitting the issues to the jury. We are of the further 
opinion that the verdict was not against the manifest 
weight of the evidence. 

The defendant complains of the voir dire examina- 
tion of one juror who was excused because the prospective 
juror stated she had had an unpleasant experience with 
the defendant. There is no record of the questions suid 
answers and no sufficient showing of possible prejudice. 



-7- 



for this court to say that the trial court erred in refusing 
to grant a mistrial. Additionally, the court gave defendant's 
counsel an opportunity to question the remaining jurors as 
to whether the excused juror's remarks would influence them. 

The defendant complains of the refusal of defendant's 
Instruction No. l4, which advised the jury that if it de- 
cided in favor of the defendant on liability, it would not 
be necessary to consider the question of damages. The court 
did instruct the jury orally that it must first determine 
whether or not there is liability and, if it decided that 
issue in the affirmative, it should fix the damages accord- 
ing to the evidence. We think the defendant was entitled 
to have all of the instructions given in writing. 111. 
Rev. Stat. (196I), chap. 110, §67. We believe, however, 
that plaintiff's given Instruction No. 8-a informed the 
jury that determination of damages was conditioned upon 
deciding in favor of the plaintiff on the question of 
liability. Also, although the court should not instruct 
orally, the instruction was upon the line requested by 
the defendant and was not, therefore, reversible error 
upon the sole ground that it was given orally. 

Defendant objects to plaintiff's given Instruction No. 11 
upon the ground that there was no evidence that other per- 
sons may have placed the substance on the floor, and no 



-8- 



ii^ 



evidence as to how the substance got on the floor of de- 
fendant's premises, and no evidence that the substance was 
on the floor a sufficient length of time that it should 
have been discovered. The portion of the instruction cover- 
ed by these objections is in the following language: *' 

"Also, the Plaintiff has the burden ' ' ' . 

of proving by a preponderance or greater ' i 

weight of the evidence one or more, but 
not all, of the following propositions: 

"1. that the substance was placed on the 
floor of Defendant's premises by the negligence 
of the Defendant or its employees. 

"2. that the substance was placed on the 
floor of Defendant's premises by other persons 
and the Defendant icnew of its presence or 
that the substance was on the floor a suffi- 
cient length of time that it should have been 
discovered. 

"3. that there is no proof how the sub- 
stance got on the floor of the Defendant's 
premises and the Defendant knew of its 
presence or that the substance was on the 
floor a sufficient length of time that it 
i should have been discovered. 

I " If you find from your consideration of 

?; all of the evidence that the Plaintiff has ful- 

I filled his burden of proof, then your verdict 

I should be for the Plaintiff, but if, on the other 

hand, you find from your consideration of all of 
the evidence that Plaintiff has not fulfilled 
his burden of proof, then your verdict should 
be for the Defendant." 

We think there was a proper evidentiary basis for 

the instruction. Here we are dealing with an object on the 

floor next to a place where a clerk was working and no persons 

were in the store other than plaintiff and one other customer 



-9- 



/ 



who was some distance away. The time within which one 

r 

might be required to discover the object under these 
circumstances could be a very short time compared to the 
time that should be given a store owner to discover an 
object in a parking lot, or compared to the time to be 
given where the store was crowded. We think this was 
within the area of proper jury determination. 

While there is an obvious objection to the last 
paragraph of this instruction in that it was directory 
and omitted the elements of due care and proximate cause, 
no specific objection was made upon these grounds and 
these elements were, in fact, supplied by defendant's 
given Instruction No. 3. 

The judgment of the circuit court will be affirmed. 

AFFIRMED. 

SMITH, P.J. and CRAVEN, J, concur. 



-10- 



r'l ■• 3 'y ( .J. 



I 



50095 

IN RE PETITION TO ANNEX CERTAIN 
UNINCORPORATED TERRITORY TO THE 
VILLAGE OF ARLINGTON HEIGHTS, ILLINOIS, 

ALBERT M. VIDMAR, BARBARA VIDMAR, 
DAVID A. BURKE, EVELYN R. BURKE. 
ALAN D. SELLS and LINDA A. SELLS, 

PeLi c loners- Appellant s , 



V, 




fld'l'^^/S^ 



kV^Ekh FROM THE 
CIRCUIT COURT OF 
COOK COUNTY, 
COUNTY DIVISION. 



THE VILLAGE OF ARLINGTON HEIGHTS, 
a Municipal Corporation, L„ A. HANSON, 
Village Manager of the Village of 
ARLINGTON HEIGHTS, and JOHN G, WOODS, 
Village President of the Village of 
Arlington Heights, 

Respondents -Appellees „ 

MR„ JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT „ 

This IS an appeal from an order of the circuit court of 

' Cook County^ County Division, sustaining the motions of the 

respondents to strike the petitions of petitioners Albert and 

Barbara Vidmar and David and Evelyn Burke, wherein they requested 

the court to vacate its order of June 20, 1963, authorizing the 

annexation of the territory described in said order to the 

1 village of Arlington Heights. This is also an appeal from 

i the order of court granting the motion of respondents to deny 

I the motion of petitioners Vidmars and Burkes to file an amended 

petition, and also granting respondents' motion to strike the 

petition of Aian and Linda Sells. The petitioners have also 

appealed from the orders which refused to vacate the order of 

-June 20, 1963, and grant an injunction restraining the village 

of Arlington Heights from completing the annexation proceedings 

of the territory described in said order. 

On April 3, 1963, a petition was filed requesting that 

territory described therein be annexed to Arlington Heights. 

A motion to dismiss the proceedings for annexation was filed 



„2- 

on June 3, 1963, by Pine Homes, Inc., not a party to this appeal, 

'/ setting forth that the petition for annexation did not conform ' 

, with statutory requirements. An order was entered on June 20, ~-j I 

\ 1963, authorizing the annexation and stating that Pine Homes, Inc. 

r^ should receive certain concessions in consideration for the with- 
\ , 

drawal of its motion to dismiss the annexation proceeding. That \ 

order recited that the petition conforms to the statute and that | 

the legal notices under the statute were published and served as 

required, and among other things set forth the following: 

"A. Land owned by Pine Homes, Inc., which is included 
and described in the Annexation Petition now pending in 
the County Court of Cook County, under Case No. 63-Co-18 39, 
shall be handled in the following manner: 

(a) Pine Homes, Inc. shall consent to the entry of a 
Decree in the Annexation Proceedings, and withdraw its 
Motion to dismiss said proceedings; 

(b) In consideration for consenting to the entry of 
the Annexation Decree, and withdrawing its Motion to 
dismiss said proceedings, the Village of Arlington 
Heights shall: 

(1) Issue a building permit for each lot owned by 
Pine Homes, Inc. 

(2) Charge the same fee for each building permit, as 
that charged for similar permits by the County 
of Cook. 

(3) Permit single family homes to be built on each ,.^. 
of said lots, having the same building specifi- 
cations as the specifications allowed by Cook 
County . 

(4) To consider these lots for all building purposes 
to be subject to the same zoning provisions as 
those lots now under the jurisdiction of the 
County of Cook, 

(4) Enter its appearance in the pending Annexation 
case, and include all of the Agreements between 
the parties in said Decree. 

(6) Include the provisions of said Decree in the 
Ordinance to be passed by the Village of 
Arlington Heights, ratifying and approving 
this Annexation." 

The order was approved by all parties through their attorneys 

of record. The village of Arlington Heights, although not a party 

to the proceedings, filed its appearance through its attorney 

and approved said order. 



y 



-3- 

Pine Homes, Inc. in its motion to dismiss the proceedings 

for annexation filed on June 3, 1963, among other things, sets 

forth the following: 

"3. Section 7=1-4 of the Illinois Municipal Code ^/ 

(Illinois Revised Statutes, 1961, Chapter 24, Section 
7-1-4), dealing with annexation of territory, provides: 

''All Petitions shall be supported by an affidavit 
of one or more of the petitioners, or ..someone on their 
behalf, that the signatures on the petition represent 
a majority of the property owners of record and the 
owners of record of more than 507o of land in the 
territory described, and a majority of the electors 
of the territory therein described.' 

Thus, the requirement of the statute is that the 
affidavit must show the existence of the following 
three facts; 

(1) That the petitioners constitute a majority of 
the record owners; (2) That the petitioners constitute 
owners of more than 507o of the land; and t3) That the 
petitioners constitute a majority of the electors of 
the territory sought to be annexed. 



4. The affidavit which is attached to the petition 
for annexation merely shows two of the three statutory 
requirements, namely: (1) that petitioners are more than 
507o of the owners 5 and (2) that petitioners are more than 
507o of the electors of the territory. 



f 



5. Paragraph 5 of the petition for annexation in the 
above entitled proceeding alleges that 'This petition 
has been signed by the owners of record of more than 50% 
of the land in such territory,' that said allegation is, ^ 
in fact, untrue, and there is no affidavit in support 
of said allegation," 

The order entered on June 20, 1963, by the then county court 
of Cook County, making concessions to Pine Homes, Inc., which, 
incidentally 5 were not enjoyed by other land owners in the 
village of Arlington Heights, was the result of the foregoing 
objections filed by Pine Homes, Inc. 

Albert and Barbara Vidmar, more than a year after the entry 
of that order, filed their petition on July 6, 1964, under section 
72 of the Practice Act (111. Rev. Stat. 1963, chap, 110, sec. 72). 
At the time of filing their petition the village of Arlington 



,^ 



^ 



-4- 

Heights had not yet passed its ordinance annexing the property 
described in the order of June 20, 1963, however, a meeting of 
the trustees of the village of Arlington Heights had been 
publicized to be held on the evening of July 6, 1964, for the 
purpose of passing an ordinance to annex said property. The 
petition of Albert and Barbara Vidmar attacked the petition 
and affidavit for annexation upon the same grounds that Pine 
Homes, Inc. had attacked the petition „ In addition to that point, 
which questions the jurisdiction of the court, numerous other 
reasons were assigned in support of the petition to vacate the 
order of July 6, 1964. 

The petition of David and Evelyn Burke, which was filed 
on July 17, 1964, likewise raised the point that the court lacked 
jurisdiction and asked that the annexation ordinance of July 6, 
1964, be declared null and void. This is likewise true of the 
petition filed by Alan and Linda Sells on August 17, 1964. 

The trustees of the village of Arlington Heights adopted 

an ordinance at its meeting held on the evening of July 6, 1964, l"| 

I 
annexing the territory described in the annexation petition. 

On August 4, 1964, the court dismissed the petitions 
of the Burkes- and the- Vidmar s upon motion of the village. On 
August 14, 1964j the Burkes and the Vidmars filed a notice of 
motion for leave to file amended petitions. On September 2, 
1964, the court denied permission to the Burkes and the Vidmars 
to file their amended petition and struck the petition of the 
SellSo 

There is no question but that the affidavit attached to 
the petition for annexation did not conform to the statute. 
(111. Rev. Stat. 1961, chap, 24, sec. 7-1-4.) The petitioners 



^ 



-5- 

herein urged that because of this failure the court did not have ¥ 

jurisdiction to enter its order of June 20, 1963. It is also 

urged that the county court in annexation proceedings derives 

its authority from the legislature and that statutes providing 

for annexation must be strictly followed to confer jurisdiction 

on the court . 

^ The affidavit attached to the original petition for annex- 
ation recited the following: "That more than fifty-one (517o) per 
cent of the owners of record of lands within said legally described 
territory and electors residing within said territory have indicated 
their assent to annexation by signing the Petition for annexation." 

;^ However, the statute (Ill„ Rev, Stat. 1961, chap. 24, sec. 7-1=4) 
requires an affidavit of one or more of the petitioners that the 
signatures on the petition represent (a) a majority of the property 
owners of record; (b) the owners of record of more than 507o of the 
land in the territory described, and (c) a majority of the electors 

of the territory therein described. The affidavit in the instant , 

ll 

case did not contain one of the requirements, namely, that the 
petition contain the signatures of the owners of record of more 1 
than 507o of the land in the territory described. 

In In Re Annexation of Territory in Kankakee County , 30 111. 
App. 2d 391, 398, the court said; "In the instant case the original 
petition on its face fully complied with the requirements of Sect. 
7-2 and was prima facie evidence of such requirement pursuant to 
Sect. 7-4. With this, jurisdiction was lodged in the County Court 
to determine, upon a hearing, the validity of the petition." 
Sections 7-2 and 7-4 therein mentioned were the same as section 
7-1-2 and section 7-1-4 under the present statute. 

The finding by the court that it has jurisdiction and that 




-6- 

the statute had been complied with is not conclusive, and Vhere 
the record shows that the county court did not have jurisdiction 
of the subject matter in a drainage case its attempted judgment 
or order is a nullity. People v. Swearingen , 273 111. 630; 
Soldier Creek Drainage and Sanitary District v. Illinois Central 
Railroad Company . 323 111. 350. 

There was no right at comirton law to have property annexed 
to a municipality, L« J. Scheuer et al. v. Johns-Manville Products 
Corporation, et al ., 330 111. ^pp . 250, and therefore the statute 
must be implicitly followed in order to confer jurisdiction upon 
the court in an annexation proceeding. 

The Supreme Court also held in the case of Ward v. Sampson , 
395 111. 353, that where the court exceeds its jurisdiction and 
the judgment transcends the statute conferring jurisdiction on the 
court, the judgment is void and may be set aside after time for 
appeal has expired. 

While the petitioners have raised a serious question ag to 
the jurisdiction of the county court to enter the original order 
of annexation, under the facts in this case we feel that the trial court 
piroperiy- denied-: tj^e petitions and properly: refused tp^grant leave to 
file amended petitions. The petitioners here waited until more 
than a year after the order of annexation. The order of annexation 
was entered on June 20, 1963, and the first petition to vacate was 
filed on July 6, 1964„ The village of Arlington Heights, however, 
also waited until July 6, 1964, before it adopted an ordinance 
to annex the territory described in the order of June 20, 1963. 
The petitions filed by the petitioners herein were \inder section 72 
of the Practice Act (111. Rev. Stat, 1963, chap. 110, sec. 72), 
and subsection 4 of that sect|.on provides as follows: "The 



/' 



-7- 

filing of a petition under this section does not affect the order, 
judgment or decree, or suspend its operation." Since the filing | 
of the petitions did not suspend the operation or the effective- 
ness of that order, and since the annexation by the village of 
Arlington Heights had been completed long prior to a decision 
by the trial court, we are of the opinion that petitioners' 
only remedy is by quo warranto , 

The petitioners cite the case of Ziebell v. Village of Posen , 
257 111. App, 32, in support of their contention that the court 
had a right to enjoin the annexation of property. In connection 
with the petitions filed under section 72 of the Practice Act 
the petitioners sought to enjoin the annexation. However, in 
that case the bill for injunction had been filed before the 
annexation was complete and before the control of the area had 
been taken by the village. In the instant case the annexation 
ordinance was passed on the same day the Vidmars' petition was 
filed. This was the first petition to be filed. The others 
were filed later. The annexation had become complete before '^^ 
the court ruled on any of the petitions. The record before us 
is silent as to what transpired in the court on July 6, 1964, 
when the Vidmars' petition was filed and there is nothing in the 
record to indicate that the Vidmars sought a temporary injunction 
on July 6, 1964, to restrain the passage of the annexation ordinance 
on that day. By the time the court ruled upon the petitions the 
village had control of the area and was exercising at least 
de facto jurisdiction over the same. Under these conditions, 
where the annexation has been completed, the proper remedy is 
quo warranto , and not by petition under section 72 of the Practice 



-8- 

Act or injunction. Graves Motors Co. v. Commissioners of the Green 

River Special Drain age District, 6 111. 2d 445; People v. McKinnie . 

277 111. 342; People v. York, 247 111. 591; Ogle v. City of 

Belleville , 238 111. 389; People ex jt^l. Mc Carthy v. Firek . 

5 111. 2d 317, 

The petitions, heretofore mentioned, to set aside the order 
of annexation, were filed under section 7 2 of the Practice Act, 
and are filed in the same proceeding in which the order, judgment 
or decree was entered. However, they are not a continuation of 
that proceeding. (111. Rev. Stat. 1963, chap. 110, sec. 72(2).) 
In Eeople v. YdxJ& . 247 111. 591, the Supreme Court held that the 
legality of proceedings by which additional territory is added 
to a municipalit> cannot be inquired into except upon a direct 
proceeding by quo warranto, and will not be determined upon a 
bill in equity or by objections to a tax which has been levied 
by the municipality upon the property in such added territory. 
The court then cited numerous cases in support of the foregoing 
statement. The question whether the area has been legally 
annexed can only be tried in a proceeding by quo warranto in the 
name of the people m which a judgment will be conclusive and 
binding upon all. People v. McKinnie , 27 7 111. 342. 

The Supreme Court in Graves Motor C o. v. Commissioners 

of the Green River Special Draina ge District, 6 111. 2d 445, 

in disposing of an objection to a dismissal of a suit in equity 

on the grounds that the remedy at law, quo warranto , is not 

adequate since a court may in its discretion refuse permission 

to institute a quo warranto action, said on page 448: 

"As to the second point, it would, of course, be mani- 
festly unjust to dismiss plaintiff's complaint in 
equity on the ground that an adequate remedy exists 



at law by quo warranto to test the merits of the objection, 
and then refuse permission to file a quo warranto action 
for that purpose. Hence for a court to deny the plaintiff 
the opportunity to file a quo warranto suit in order to 
object to the validity of the organization of the Green- 
River district for the reason alleged, would amount 
to an abuse of the discretion lodged with that court. 
Cf„ People ex rel. Raster v.._ Healy, 230 111. 280, 288-9, 



People ex rel 



5 111. 2d 317, 320=1." 



Since quo warranto is the proper proceeding under the 
circumstances in this case the orders of the trial court are 



affirmed, 



Affirmed, 



Dempsey , 



P,Jo5 and Schwartz 5 J., concur, 



Abstract only. 



'- 1 
50368 

JOHN J„ WEISS, JRo , 

Claimant-Appellee s 

V, 

ALBERTA Eo EHRLICH, Executor of 
the Last Will and Testament of 
Benjamin H„ Ehrlich, Deceased, 




APPEAL FROM THE 
CIRCUIT COURT OF 
COOK COUNTY o 



Executor-Appellant o ) 
MRo PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT, 

John J„ Weiss, Jr^, filed a claim for $2,500„00 in the 
Probate Division of the Circuit Court against the estate of 
Benjamin Ho Ehrlicho The claim was based on a check given to 
Ehrlich, an attorney at law, as an advance against legal 
services to be performed; if no services were rendered the 
amount of the check, less reasonable expenses, was to be 
I returned to Weiss o The estate contended that the check was 
a retainer to keep Ehrlichs, his partners and associates from 
representing Mrs,, Weiss should she seek their services ^ The 
executor of the estate appeals from the order allowing the claim 
and argues that the court erred in ruling on matters of law and 
evidence and that the judgment is against the manifest weight 
of the evidence o 

Weiss had some marital difficulties and he discussed 
these with his friend, attorney Herman Silverstein. 
Silverstein suggested that he see Ehrlich who was a member of 
a firm specializing in matrimonial laWo On May 1, I962, Weiss 
and Silverstein had a 15 or 20 minute conversation with Ehrlich 
and with Aaron Cohn, another member of the firmo While there 
is a dispute as to what took place, it appears that Weiss 
indicated he was contemplating a divorce but that he and his 
wife were living together and he had not made up his mind 



^•2- 

whether to proceedo He was advised that neither he nor his wife 

had grounds for divorce or separate maintenance, 

Weiss and Silverstein met with Ehrlioh again on May 8tho 
At that time Ehrlich gave Weiss a blank check and requested that 
it be made payable to his firmj Ehrlich and Cohn„ Weiss filled 
in the check and signed it„ It was for $25500,00 and Weiss wrote 
on rhe back of it, at the very topj "for services to be renderedo" 
He testified that he did this because he wasn't sure he wanted to 
go through with his contemplated divorce and that he did not, at 
that time J intend to retain Ehrlich or his firmo He further 
testified that the word "retainer" was never mentioned; that it 
was he 9 not his wife, who was thinking cf a divorce ^ and that no 
services were rendered because the very next day his marital 
trouble was resolved,, He requested repayment of the $2350Q.OO 
but it was not returnedo 

A different version of the conversations was presented by 
attorney Cohno He said that Weiss was worried because his wife 
had been talking about separate maintenance and had made inquiries 
about hiring the firm of Ehrlioh and Cohnj that Weiss wished to 
take the firm "off the market*" and wanted to be sure that Ehrlich 
would represent him. He was informed, that they Would want a 
retainer of $29500,00 for themselves and Silverstein, who was 
to be associated with them in the caseq and that ¥eiss replied 
that he did not know whether he would proceed but that he would 
let them know„ 

Cohn further testified, contrary to what Weiss had saidg 
that he and Stanton Ehrlich, another member of the firm 9 were 
present at the second conference o According to Cohn, Weiss and 
his wife had separated that morning and notes were made of their 



II 



-3'= 

family situation „ Benjamin Ehrl ioh then asked Weiss for the 
retainer, Ehrlich furnished the blank check and Weiss wrote 
it outo Cohn said he had no reooileotion of the notation Weiss 
wrote on the back of the checko He said they did not hear from 
Weiss again until sometime in Juneo 

Stanton Ehrlich testified he was present part of the time 
at the meeting on May 8th„ He said the check was a retainer to 
keep the lawyers in their firm from being available to Mrs o Weiss 
in the event she wanted to hire them^ thar the exact words used 
were keeping the firm "off the market o" He added that if there 
were additional service "it would cover some thousands," 

The executor's first point or: appeal is that the court vras 
in error ''in maintaining that a law firm, once retainedg would be 
' required to do more than remove itself from the market ,»„ and be 

willing to render future services to its client," Cited in support 
of this point are three cases which hold that by accepting a 
retainer fee a lawyer deprives himself of the opportunity of being 
employed by the adverse party and is thereby entitled to retain 
the fee whether or not he performs further services for his client: 
Blackm an v, Webb, 38 Kan, 668 (1888)5 Union Surety and Gua ranty Co, 
Vo Tenneyg 200 111, 3k9 (1902) and Blair v , Columbia Firep roof ing 
Coo 9 191 Mass, 333 (1906)0 It is unnecessary to discuss these cases 
or the principle of law involved because the executor's point is 
based on a false premise. The trial court did not hold against the 
estate for the reason given by the executor. The trial court mad© 
a determination of fact not of law. The court allowed Weiss' claim 
because the court believed his version of the agreement with 
Ehrlichj supported as it was by the check itself with the endorse- 
ment thereon: "for services to be rendered." 



The court found this fevidence insurmountable. The court 
termed the check a conditional payment for services to be 
rendered and said it was the only concretes, undisputed eTidenoe 
in the case. The court accepted Weiss' testimony that there was 
a chance of litigation between himself and his wife and that the 
serirloes to be rendered were legal servi^jes in connection with 
possible divorce proceedings o If the court had found that the 
payment was a retainer for the purpose of taking the firm '"off 
the market" and had then refused to sustain the pasonent because 
the lawyers had rendered no other Sbrvice, there would be somfc 
foundation for the executor °s point „ As these is^ there is none^ 
for the court rejected the testimony and argument in behalf cf 
the executor. 

Attorneys Cohn and Stanton Ehrlich participated in the 
argument that followed their testimonyo During the argument 
thei'e was a deviation from their position that the sole obligation 
the firm had was declining employTOent by Mrs » Weiss, Ehrlich 
twioe lent support to tSie cosirt's view that the services agreed 
upon wfere not so liraitedo At one time he said "One of the 
services was not to represent his wife„ooo" At another timej 
in response to the court "s inqiuiiry as to what services were to 
be perfcnned, he replied "To defend him if she sued." 

The executor's next point also rests on a false premise. 
It is claimed that the court erred in not permitting Stanton 
Ehrlich to testify that he refused to accept employment offered 
\ by Mrs. Weiss. The executor suffered no harm by the exclusion 
of Ehrlich" s testimony because the testimony sought to be 
elicited was already in the ^record. Attorney Cohn had been 
asked "What services had been rendered by Ehrlich?" and had 



-5- 

answered "Refusing to take the case of the lady." A motion was 
made to strike the answer but the court permitted it to stand. 
Again he was asked, and this time there was no objection, "What 
services were rendered by Mr. Ehrlich or Mr. Cohn after the date 
of the check, if any?" He replied "Refusal to take on the case 
of Mrs. Weiss when she appeared at our office." 

Another alleged evidentiary error was the court's refusal 
to receive in evidence two letters written by attorney Silverstein 
to Benjamin Ehrlich at the latter 's request. The letters were 
dated September 24, 1962, and April 26, 1963. The argument is 
made that the door was opened for the reception of the letters by 
a question asked Cohn on cross-examination and that the letters, 
otherwise inadmissible, became admissible because of this question. 
The question was whether Silverstein talked with Benjamin Ehrlich 
about returning the $2,500.00 to Weiss. Cohn answered in the 
affirmative and the subject was dropped. On redirect examination 
the defense pursued the subject and offered the letters ostensibly 
to prove that Ehrlich had heard from Silverstein. Both letters were 
self-serving, contained hearsay information, gave Silverstein' s 
account of the events leading up to the consultations with Ehrlich, 
what had taken place at those meetings and what Ehrlich had told 
him about Mrs. Weiss subsequently coming to the firm's office. 
Silverstein did not testify in person and no evidence deposition 
from him was submitted. No question was asked or information educed 
by the claimant that tended to make the letters admissible in evidence. 
At most they might have been admissible for the very limited purpose 
of proving their receipt — if their receipt was in dispute, which 
it was not. One simple question had been asked and answered. 



-6- 

The estate resurrected the subject and tried to use the question 
as a means of introducing the contents of the letters. The 
court properly excluded thera. 

The executor attempted to prove by the testimony of 
attorney Cohn that shortly after the check was received 
one-half of the amount was paid over to attorney Silverstein. 
The theory of the executor is that the testimony should have 
been admitted because it showed the interpretation the firm 
placed on the agreement with Weiss; that the prompt division ! 
of the check with Silverstein was proof that the lawyers i 
regarded it as a retainer to take their firm off the market, / 
for if it had been for future legal services they would not 
have split it until the services were performed. The court 
excluded the testimony for the stated reason that Weiss could 
not be bound by what was done out of his presence and beyond 
his control or by what the lawyers did among themselves. 
The court commented that, in view of the testimony about the 
agreement, it would be immaterial to draw any conclusion from 
the action of the attorneys. In the opinion of the court there 
was no ambiguity in the agreement of the parties that required 
interpretation, and we find no substantial error in the court's 
ruling. Moreover, the evidence was double-edged; inferences 
unfavorable to the attorneys could be drawn from it and its 
value to the estate was dubious. Splitting fees not "based 
upon a division of services or responsibility assumed" is of 
questionable propriety. Why Silverstein should have received 
half of the fee for keeping the firm of Ehrlich and Cohn from 
representing Mrs, Weiss was unexplained. If Weiss had reason 
for such a bargain with the firm, he had none insofar as his 



0<; 



-7- 

friend Silverstein was concerned. 

The finding of the trial court that the evidence showed 
that no retainer was intended and that the services contemplated 
by the agreement were not performed for the claimant was not 
against the manifest weight of the evidence and will not be 
disturbed. The notation on the check just above the endorsement 
of the firm was "for services to be rendered" not "to take the 
firm off the market." To read into the notation the meaning 
"for services to be rendered by taking this law firm off the 
market" would be drawing an unreasonable inference from the 
words actually used. To do so would be altering the natural 
meaning of the words employed in a written instrument. The firm 
accepted the check subject to the notation and must be bound by 
the condition set forth in the notation. 

.Weiss* claim was for $29500,00 less the reasonable value 
of Ehrlich's services. The court stated that the cld.im would 
be allowed subject to those services » After some discussion 
as to what the services were and the amount of time spent 
talking with Weiss, attorney Cohn said the reasonable value 
feature would be waived, that Weiss was entitled to his full il 
claim or to nothing. Accordingly^ the court entered judgment 
for the full amount. The judgment will be affirmed. 

Affirmed. 

Sullivan and Schwartz, JJ., concur. 

Abstract only. 



I 



50337 /1o^ I.A^/S'i, 

PEOPLE OF THE STATE OF ILLINOIS 



5 

Defendant in Error. 



vs. 

JAMES STINSON, 



WRIT OF ERROR TO 
CIRCUIT COURT OF 
COOK COUNTY o 




Plaintiff in Error. ) 



MR. PRESIDING JUSTICE McCORMICK DELIVERED THE OPINION OF THE COURT. 

At a bench trial in the Criminal Division of the Circuit Court 
of Cook County the defendant g James Stinson, was found guilty of the 
rape of Alberta Anderson g and his punishment fixed at imprisonment 
in the penitentiary for a term of not less than eight nor more than 
nine years. Motions for a finding of not guiltyj for new trials ^^<i 
in arrest of judgment were denied,, Defendant brings a writ of error 5 
claiming the evidence was not sufficient to establish his guilt be^ 
yond a reasonable doubt. 

The complaining witness testified that she had gone to an apart ■= 
ment occupied by a person whom she identified as "Billj" and that she 
left his apartment at 3; 00 a„m, to go home. Sitting in the hallway 
on a garbage can was the defendant. He got up^ took the light bulb 
out of the socket 9 put a knife to her chin 9 knocked her to the floor g 
put the knife to her stomachg pulled up her dress and cut her girdle g 
then raped her. She had screamed for help but he told her he would 
kill her if she didn't shut up. She was cut on the chin and stomachy 
and bleeding a lot. 

Two police officers testified that they heard the screams of the 
complaining witness; that they came into the building and the defend- 
ant at that time was still on top of the complaining witness. (This 
testimony corresponds to that of the complaining witness.) The 
police officers further testified that she was cut and bleeding 5 
and that the defendant had a knife which he threw out the window. It 
was afterwards recovered by the police and introduced in evidence. 
The officers identified the defendant at the trial, and the prose=> 
cution introduced the blood-stained clothes of the complainant and 



-2- 

the shirt of the defendant, which was also blood-stained, together 
with the knife which was used at the time of the coinplained=of 
incident. 

The defendant and a friend of his (J„ W. Wade) both testified. 
Wade stated that he had met the complainant in a tavern; that she 
had agreed to come to his room and have intercourse with him for 
$5,00; that he gave her the $5.00; and that when she left he heard 
no screaming outside his apartment. (All of this was denied by the 
complaining witness.) The defendant testified that he had gone to 
Wade's apartment with the intention of gambling; that no one answered 
the bell; that when he was starting to leave he saw the complaining 
witness; that he spoke to her and she offered to have sexual rela- 
tions with him for $5.00, and he gave her $4,, 00; that he asked her 
to get on the floor and she refused j then finally agreed; that when 
she refused to take her girdle off he cut the girdle. He said 5 "1 
cut her girdle. That was so I could do what I wanted." He further 
testified that afterwards she started to run and got cut with the 
knife. He denied that he was on top of her when the police camej, 
and stated that he cut her on the chin by accident. He admitted on 
recross examination that he was on his knees when the police came 
and that he told the police he had found the complaining witness 
bleeding, and he was trying to help her. 

The defendant relies entirely upon the argument that the evi= 
dence in the record was not sufficient to justify a finding of the 
court that the defendant was guilty; or, in other words, that there 
was a reasonable doubt of the defendant's guilt. In support of that 
contention the defendant cites People v. Tate ^, 26 111, 2d 588, 188 
N.E.2d 9; People v. Rossililli. 24 111. 2d 341, 181 N.E.2d 114; and 
People V. Szybe^ko , 24 111. 2d 335, 181 N.E,2d 176. The facts in 
these cases are so far from the facts in the instant case that they 
are not applicable. 



-3- 

It is a well recognized rule of law that where a case is tried 
without a jury it is the function of the trial judge to determine 
the credibility of the witnesses and the weight to be afforded their 
testimony, and when the evidence is merely conflicting, a reviewing 
court will not substitute its judgment for that of the trier of the 
facts. People v. Clark . 30 111. 2d 216, 195 N.E.2d 631; People v. 
Johnson . 47 111. App. 2d 441, 198 N.E.2d 173; and People v. Cobb . 52 
111. App. 2d 332, 202 N.E.2d 56. 

In his argument in the brief filed in this court the defendant 

said: 

"The defendant contends that although the uncorroborated 
testimony of a prosecuting witness in a case of rape is 
sufficient to warrant conviction therefore [sic]; there 
must be clear and unquestionable evidence surrounding 
such testimony to warrant such conviction where the de- 
fendant denies the charge." 

In the instant case the testimony of the complaining witness was 

clear and convincing as to what occurred. The identification of the 

defendant was incontrovertible. She testified that she resisted; and 

both she and the two police officers testified that the police were 

attracted by her screams. The two officers further testified that 

when they arrived the defendant was in a compromising position from 

which they could infer that he had had sexual intercourse with the 

complainant as she had testified. In other words, the testimony of 

the police officers corroborated the testimony of the complaining 

witness. The defendant's admissions as to his use of the knife and 

as to his conduct with the complaining witness were not testimony of 

such character as could cause the court to draw any other inference 

than the one which it drew. 

The judgment of the Criminal Division of the Circuit Court of 

Cook County is affirmed, 

AFFIRMED. 

English, J., and Drucker, J., concur. 

Publish abstract only. 



50596 

BERTHA SANDERS, 

Plain tiff -Appellee, 
vs, 
ALONZO SANDERS, 

Def endant=Appellant , 



(Jos' r./j^'/s-^ 

APPEAL FROM THE 
CIRCUIT COURT OF 
COOK COUNTY o 




^ 



MR, JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT „ 

This case comes up for consideration on plaintiff -appellee ' s 
motion to dismiss the appeal. 

The appeal had previously been dismissed for want of prosecu- 
tion on September 1, l965o Briefs and abstracts of appellant 
had not at that time been filed and were overdue 39 days under 
the provisions of this court's Rule 5(2) (m). Because of circum= 
stances surrounding the death of a co-counsel for appellant, 
the dismissal was vacated and the appeal reinstated on September 
24, 1965, At the same time appellant's motion by original counsel 
of record to extend the time to October 10 for the filing of his 
briefs and abstracts was allowed. They have not been filed. 

To appellee's motion to dismiss, the countersuggestion filed 
by appellant's original first=named co=counsel was to the effect 
that he had not been paid for his services rendered up to that 
time, and therefore wished to withdraw. This is not an adequate 
excuse for failure to comply with the rules of this court. 

Appellee's motion is allowed, and the appeal is dismissed, 

APPEAL DISMISSED, 
McCORMICKj PoJ., and DRUCKER, J,, concur. 



Publish abstract only, 



50495 (Z^X^^^^Ji) 



PEOPLE OF THE STATE OF ILLINOIS 
ex rel. CAROL GARCIA, 



Plaintiff -Appellant , 



V, 

STANLEY GARRISON. 



Def endant=Appellee, 




APPEAL FROM 

CIRCUIT COURT s 
COOK COUNTY. 



MR, JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. 

This is a paternity actiono On September 16, 1958 , the 
defendant was found guilty of being the father of a child born out 
of wedlock. Six years later^ on December 85 19643 on petition of 
defendant, the trial court entered an order 5 the effect of which 
was to find the defendant not guilty of paternity of the same child. 
The State appeals. Defendant has filed no brief » 

The record indicates no attempt by court action to enforce 
the terms of the paternity order of September 16 5 1958 5, until 
August 17, 19645 when an arrest warrant for the offense of paternity 
was issued and served on defendanta On December 85 1964, after a 
hearing and consideration of defendant's petition, the trial court 
found defendant not guilty and ordered the defendant discharged. 

The verified petition of defendant states that on September 16, 
1958, he was ordered to pay $15 per week for the support of a female 
child bom to Carol Garcia on August 5, 1956; that he was not repre= 
sented by counsel and was not advised of his rights and liabilities 
in the matter; that he was not permitted to cross= examine "the 
complaining witness, was not advised of his right to a trial by jury, 
and was not permitted to offer rebuttal testimony other than his own 
statement that he had not had sexual relations with the complaining 
witness"; that defendant has never paid anything to the complaining 
witness, as required of him by the order of September 16, 1958, and 



N 



I 



-2- 

"in the instant case the complaining witness has neglected or omitted 
to assert an alleged right for a period in excess of six years. The 
female child in question is now in excess of eight years of age. 
The defendant has, in the intervening years, substantially altered 
his position. He has acquired a family, and is actively engaged in 
their support and care. * * * Your petitioner respectfully submits 
that this alleged right asserted so many years after its alleged 
creation has been barred by the doctrine of laches." 

The petition requested the court "to dismiss the complaint 
heretofore filed and to discharge the defendant from any and all 
further liabilities herein," After questioning the complaining 
witness as to her marital and "A.D.C." status, the court remarked, 
"Defendant is discharged. * * * Go to A.D.C. and tell them to raise 
your monthly allowance." The order entered of record found "the 
defendant is not guilty of the offense charged in the complaint herein 
and it is ordered by the court that said defendant be discharged and 
go hence without day." 

The petition of defendant, if meritorious, seeks relief 
provided for in section 72 of the Civil Practice Act (111. Rev. 
Stat., Ch. 110). As such, it is an action civil in nature and appeals- 
able by the State. People v. Green> 355 III. 468, 473, 189 N.E. 500 
(1934). 

Considering this record and the allegations of defendant's 
petition, we conclude that it is without merit and not timely. We 
do not believe that section 72 was intended to permit a court to 
enter an order which rendered null and void a previous final and 
appealable order, without the petition for relief alleging facts 
sufficient to show that the petitioner's request for relief was 
obtainable under the provisions of section 72. Laches is no basis 



I .3- 



for relief in this case, and defendant's other contentions were 
inherent in the original proceedings and available for determination 
by the trial court at the time of the entry of the order of September 16, 
1958, or by a proper appeal, ( Calabrese v» Hatlen Heights Sewer & 
Water Co.. Inc> . 61 111. App.Zd 434, 209 N.E.2d 855 (1965).) Also, 
see People v. Saunders . 22 111, App.2d 175, 159 N,E.2d 499 (1959), 
for a similar factual situation. 

As to timeliness, section 72 provides that "the petition 
must be filed not later than 2 years after the entry of the order, 
judgment or decree," Defendant's petition does not show any legal 
disability, duress or fraudulent concealment and, therefore, his 
petition comes too late. 

For the reasons given, the order of December 8, 1964, is 
declared to be null and void and is hereby reversed and set aside. 

REVERSED . 



BURMAN, P.J,, and KLUCZYNSKI , J., concur. 
Abstract only. 



T 



^- ^ 




NO. 65-12 



^5-^-^^;?/^ 



Abs;:rac/: 



IN THE 



APPELLATE COURT OF ILLINOIS 



SECOND JUDICIAL DISTRICT 




WILLIAM J. WAGNER, 



Plain tiff -Appellant, 



vs. 



MICHAEL DAVID, DAVID BUILDING COR- 
PORATION, an Illinois Corporation, and 
HOME BUILDING AND LOAN ASSOCIATION, 
h Illinois Corporation, 

Defendants -Appellees, 

AND • 



WILLIAM Jc WAGNER,. 



Plaint iff -Appellant, 



vs. 



MICHAEL DAVID and DAVID BUILDING 
CORPORATION, an Illinois Corporation, 

Defendants-Appellees, 



Appeals from the Circuit 
Court of the Sixteenth 
Judicial Circuity Kane' 
County, Illinois 



ABRAHAMSON, Po Jo 

This appeal is prosecuted from an order of the Circuit Court of 
Kane County dated September 4, 1964, denying the right of foreclosure 
in each of two cases, which had previously been consolidated; sustaining 
exceptions to the Master's reports in the two causes; and dismissing 



-1- 



the complaints for want of equityo Appeal is also made from earlier 
orders consolidating the two foreclosure actions and denying a motion 
for change of venue « 

The factual background in this matter is an involved and confused 
one and needs to be discussed only briefly in view of our determination. 
Appellant-plaintiff J William J„ Wagner, hereinafter called Wagner, and 
Appellee-defendant, Michael David, hereinafter called David, lived to- 
gether from 1937 until Wagner's marriage in 1954, except for the period 
1942-46 when Wagner was in the armed service. The relationship appears 
to have been a close one with the parties mingling their respective 
earnings with little or no effort at efficient accounting. In 1937 
a house was purchased in David's name but it is agreed at least part of 
the down payment was Wagner's money. In 1941, an apartment building was 
purchased in the names of David and Wagner jointly, but Wagner, at David's 
request, conveyed his portion of the title to David while he was in the 
service. In 1946, a hotel was acquired in David's name with the properties 
purchased earlier used as additional security for the necessary mortgage 
loan. A second hotel was subsequently purchased in Wagner's name. 

Throughout these years there was a bewildering exchange of monies, 
correspondence and documents to which radically different interpretations 
have been placed by the contesting parties. It is agreed that in 1947 
David contemplated a visit to his native Hungary and that it was agreed 
some of these matters should be arranged for Wagner's protection in the 
event David was unable to return. Accordingly, the two visited David's 
attorney who prepared mortgages from David to Wagner on the aforementioned 
apartment building and first hotel in the amounts of $20,000 and $40,000 

-2- 



respectively „ The mortgages were dated September 9, 1947, and executed 
by David together with notes which they secured. The contest principally 
concerns the question of delivery of these instruments to Wagner and 
whether they were supported by sufficient consideration.. 

Separate complaints were filed to foreclose the two mortgages on 
October 3, 1955, the hotel foreclosure as Case Number 55-890 and the 
lapartment building as Case Number 55-891 » Both cases were referred to 
a master for hearings and reports. On December 3, 1956, hearings com- 
menced in Case No. 891 which were not concluded until December 30, 1958; 
The master filed his Supplemental and Final Masters Report on March 24, 
11961, which was taken under advisement by the Court, On February 20, 
1961, Case No, 55-890 was re-referred to the master who commenced hear- 
ings on that matter on February 27, 1961, Although his report was not 
filed until June 5, 1964, the hearing itself was apparently concluded 
that same day. It is important to note that separate hearings were held 
on the two foreclosures and separate reports filed by the master. Very 
little evidence was introduced during the hearing in 55-890 and no defense 
was presented. 

On April 2, 1964, an order was entered consolidating the two causes 
on the motion of attorneys for David over objection by Wagner's counselo 
It appears that at that date the Court was unaware that separate hearings 
had been completed on the two causes. 

Section 51 of the Civil Practice Act provides: "An action may be 
severed, and actions pending in the same Court may be consolidated, as 
an aid to convenience, whenever it can be done without prejudice to a 
substantial right." (111. Rev, Stat. 1963, Chapt. 110, Par. 51) 



-3- 



i 



Ordinarily, the consolidation of lawsuits is left to the discretion 
of the trial court. Ruggles Vc Selby, 25 111. App. (2d)1^21Ihe purposes 
of consolidation are to expedite the resolution of lawsuits, conserve 
the time of the court and to avoid additional expenses caused by un- 
necessary duplication. The discretion normally is exercised liberally 
by trial courts but should never be used to prejudice rights of the 
litigants. Peck v. Peck, 16 111. (2d) 268, 275. 

It is evident that the consolidation in the instant case does not 
serve the purposes intended. The matters had already been heard sep- 
arately by the master and the duplication of effort and expense already 
expended. It would be necessary for the court to refer to both reports 
in arriving at its decision and the conservation of its time would be 
slight. 

More important, the consolidation did prejudice a substantial right 
of one of the parties, Wagner. As we have seen, the hearing on 55-891 
was extensive and bitterly contested. However, the record of 55-890 
contains little more than an offer of a prima facie case by Wagner and 
could not, by itself, support the dismissal ordered after consolidation. 
In view of these circumstances, it is our opinion that the trial court 
abused its discretion in ordering the consolidation of the two cases and 
that order is reversed, 

Wagner also urges that the denial of his motion for a change of 
venue was reversible error. Wagner had complained on at least two 
occasions to the Chief Judge of the Circuit Court in regard to the long 
and unexplained delay in bringing these suits to conclusion. These 
complaints had been brought to the attention of the trial judge. On 
May 21, 1964, Wagner filed his motion for change of venue supported by 

-4- 



an affidavit referring to the complaints and to the fact that Wagner 
had only recently learned that the trial judge was aware of them. 
The affidavit stated further that, as a result, the trial judge would 
be prejudiced against Wagner and that he feared he would not receive a 
fair and impartial trialo That motion was denied on May 25, 1964. The 
trial judge indicated that the motion was denied because he was, in 
fact, not prejudiced and that he had already considered certain matters 
in the case. 

It is generally held that when a petition or motion asserting pre- 
judice of the trial judge is both timely and in proper form, a change of 
venue is an absolute righto Miller Vo Miller, 43 IlL App. (2d) 214, 215. 
The motion to be timely must be made at the earliest practical time after 
the moving party has discovered the prejudice and before the court has 
ruled on any substantive issue in the case» Paramount Paper Tube v., 
Capital Engineering, 11 Illo App. (2d) 456, 461o 

The motion in this case was in proper form and appears to have pre- 
sented as soon as Wagner learned that the trial judge was aware of his 
complaints. The court had made several preliminary rulings in the cases 
before the motion was presented. However, none of these rulings concerned 
any substantive issue in either case. Under these circumstances, the 
change of venue should have been granted as a matter of right and the 
trial court was in error when it was denied. 

As stated above, the orders of consolidation and denying the change 
of venue are reversed; the cases are remanded with directions to grant 
the change of venue and to vacate all orders entered in either cause 
subsequent to May 25, 1964. 

REVERSED AND REMANDED WITH DIRECTIONS. 

Davis and Moran, J. J. Concur. 

-5- 



/ 



No. 65-12 



/< 



^' 



M 



IN THE 



APPELLATE COURT OF ILLINOIS 



SECOND DISTRICT. 






WILLIAM J. WAGNER, 

Plaintiff -Appellant, 

vs. 

MICHAEL DAVID, DAVID BUILDING COR- 
PORATION, an Illinois Corporation, and 
HOME BUILDING AND LOAN ASSOCIATION, 
an Illinois Corporation, 

Defendants -Appellees. 

AND 

WILLIAM J. WAGNER, 

Plaintiff- Appellant, 

vs. 

MICHAEL DAVID and DAVID BUILDING 
CORPORATION, an Illinois Corporation, 



Defendants- Appellees. 



Appeals from the Circuit 
Court of the Sixteenth 
Judicial Circuit, Kane 
County 



SUPPLEMENT TO OPINION 



MR. PRESIDING JUSTICE ABRAHAMSON DELIVERED THIS SUPPLEMENT 
TO THE OPINION: 

On the Defendants' Petition for Rehearing our attention 
is called to the proceedings in Case # 55-890. The proofs came to 
a halt with plaintiff's request to certify a question of evidence to the 
Chancellor in the hearing pending before the Master. We are unable 



to determine if the plaintiff's proofs had been completed but find 
that the defense had no opportunity to proceed. Upon tlie entry of the 
Order of Consolidation the defendants' relied upon the proofs sub- 
mitted in Case # 55-891 as determinative of the defense in Case # 55-890. 
Now that we have reversed the trial court's Order of Consolidation, 
upon the remandment, all of the parties in Case # 55-890 should have 
equal opportunity to make such proofs as they deem necessary. 



MORAN, J. and DAVIS, J. concur. 



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50886^-. -^^-" 

EARL R. FOSWOLD and A.R. STARR, 
Plaintiffs-Appellants , 

V. 

DOMESTIC UTILITY SERVICES CO. and 
VICTOR YACKTMAN, 



C6fT. /I ^^/j ) 



APPEAL FROM THE 
CIRCUIT COURT 

OF COOK COUNTY 




Defendants -Appellees. 
MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT: 

This appeal comes from an order entered in the Circuit Court 
of Cook Coionty, September 23, 1965, denying the plaintiffs' motion 
for a temporary mandatory injunction. 

The findings of the Court below, incorporated in the order, 

include: 

•'1. The plaintiffs' Complaint, Amended Motion for a 
Temporary Mandatory Injunction and the defendants' 
answers to each respectively, presents a justiciable 
issue requiring evidence to be heard and proofs to 
be made by the plaintiffs tending to substantiate 
their allegations prior to the Court granting the 
plaintiffs a Temporary Mandatory Injunction, and 
accordingly, the plaintiffs are granted leave to 
introduce such proofs. 

'12. The plaintiffs refuse to introduce any evidence 
or proof which might tend to substantiate the allegations 
set forth in their Amended Motion for a Temporary Mandatory 
Injunction by them sought, and further refuse to proceed 
with the hearing upon their motion. 



The record shows that the Court below refused to hear the 
parties' proofs in this case, saying that he was far too busy. The 
record also shows that the Court below made arrangements with a 
master to hear the matter immediately and that the plaintiff refused 
to proceed before the master on the grounds that the Court did not 
have the authority to refer the matter but must hear the case himself. 

The appellant argues that the insistence of the Chancellor in 
referring the motion for an injunction to a master was improper because 
there was no issue of fact, leaving the Court below only with a matter 
of law for his determination, and because such reference is not 



-2- 

permitted by the rules of the Supreme Court, All parties proceeded 
in this court on the basis that the appellant was willing to present 
evidence before the Chancellor had he been willing to hear the matter 
at that time. 

The amended motion for a temporary injunction alleges that the 
appellants reside in an unincorporated area of Maine Township near the 
village of Glenview. These appellants are supplied with water by the 
appellee, Domestic Utility Services Co. (hereinafter called Domestic), 
and Domestic is "either the only or the principal utility company 
supplying water and sewer service in the unincorporated areas of 
Maine Township..." 

It is alleged that Domestic services homes adjacent to the 
plaintiffs' homes and that "It also provides sewer and water service 
to the nursing home occupying a large tract of land immediately adjacent 
to and east of the home of plaintiff Starr," The appellants alleged 
that they had used septic tanks for years but determined in 1964 "that 
the use of such septic systems was inconsistent with their public health," 

The appellants built a sewer line at their own expense "to 
interconnect with the sewage main of Domestic at the most convenient, 
economical and feasible point which they believed would be at Chester 
Avenue and Dempster Street." The appellants had received sewer tie-in 
permits from the Greenwood Avenue Sewer Company, but determined that i; 
would be uneconomical for them to build a sewer that would tie in with 
the Greenwood line. It is alleged, however, that, "The defendants as 
operators of a public utility are estopped from demanding that plaintiff 
interconnect at Greenwood Avenue or any other point than the closest 
and the most efficient interconnection in that ultimately they will or 
may acquire such facility and, as a public utility, they are duty-bound 
to acquire or construct their facilities at the lowest possible cost." 

Attached to the complaint is a permit issued by the Metropolitan 
Sanitary District of Greater Chicago which gives permission for the 



-3- 

appellants' sewer main to be built. 

The appellees admit that the appellants applied to the Sanitary 
District for permission, hut allege that the issuance of such permit 
does not create a vested right in the appellants to interconnect with 
Domestic's sewer main in the absence of having first received the 
approyal and consent of Domestic, and also state that the Sanitary 
District issued its permission under the impression that the appellants 
had permission to interconnect with Domestic's line, when in fact they 
did not have such permission. 

The appellees also deny that the permit from Greenwood Sewer 
Company gives the appellants permission to tie in their sewer to 
Domestic's line. There are other allegations by both sides which are 
unnecessary to discuss here. 

We feel that the Court below was correct in deciding that there 
were questions of fact and that a hearing was required before the rights 
of the parties could be properly determined. For example, the relation- 
ship between the Greenwood Avenue Sewer Company and Dpmestic was a 
question of fact which could have had a bearing on the rights of the 
appellees to prevent the appellants from hooking up their sewer main to 
Domestic's, Another question of fact is whether or not the Sanitary 
District misapprehended the facts when it granted permission to the 
appellants to construct their own sewer line. There are other questions 
of fact which we could mention, but nothing more is needed to show that 
there were questions of fact for determination. 

The one question remaining is whether or not the Chancellor 
had the power to require the parties to present their proofs before a 
master rather than hear them himself. This matter was decided in the 
case of American V. P. Co. v. McNeely Gen. C. & E. Co ., 37 111. App.2d 
403, 185 N.E,2d 711 (1962), That case held that the court in a 
chancery action or an action at law could, in the exercise of his sound 
discretion, refer the cause to a master or referee under the authority 



;, ! 



- 4 - 

of sec. 61 of the Civil Practice Act. (111. Rev. Stat., 1963, Chap. 

110, Sec. 61.) 

"Subject to rules, the court may in any chancery 
action, or in any action at law in which matters of account 
are in controversy, on default or upon issue joined, refer 
the cause to a master or referee to take testimony and 
report his conclusions thereon." 

The Court in discussing this section noted that the only limitation upon 

the Court's power to make such a reference as was made in the instant 

case are the words, "Subject to rules." 

The only rule which would have a bearing on this matter is rule 

1.4-1 of our Supreme Court which reads: 

"In any chancery action or in any action at law in which 
matters of account are in controversy, on default or upon 
issue joined, the court may refer the cause to a master in 
chancery who is continued in office by the judicial amendment 
to take testimony and report his conclusions thereon. A 
reference to a master shall be the exception and not the 
rule. . .T" (emphasis added) 

The court in American V.P. Co. v. McNeely Gen. C. & E. Co. , supra 

held that the rule is precautionary only, and we hold that the reference 

to a master was a matter for the discretion of the Court below. The 

Court below did everything in his power to see to it that the master 

would give prompt attention to the appellants' motion for a temporary 

mandatory injunction. The appellants refused to present their case 

before the master and the Court was acting well within its authority 

tn denying the motion. The order is affirmed. 

ORDER AFFIRMED. 

BURKE, P.J., and LYONS, J., concur. 




!^ 




50428 

SOCIETY OF THE DIVINE WORD, 

Plaint iff -Judgment-Credit or, 

V. 

MAURICE H. KAMM, 

Defendant-Judgment-Debtor , 

ROBERT G. WOLFE, Trustee of 
Continental Investment Trust, 

(Third Party), Respondent-Appellee. 

and 




APPEAL FROM 
CIRCUIT COURT 
COOK COUNTY 



BANKERS FINANCE COMPANY, 

(Adverse Claimant), Petitioner- 
Appellant. 

MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT: 

Bankers Finance Company appeals from an order of the Circuit 

Court entered on January 18, 1965> dismissing its petition seeking 

relief under an order entered on March 21, 1963» in the same court in a 

supplementary proceeding. The order of March 21, 1963» found and decreed 

that a certain note executed on April 25, 1962, by Robert G. Wolfe, sole 

trustee of the Continental Investment Trust, was owned two-thirds by 

Robert G. Wolfe, individually and one-third by Bankers Finance Company. 

The court directed the trustee to make the current payments. Subsequently, 

in a supplementary proceeding in the United States District Court for the 

Northern District of Illinois, in a case entitled Clinton B. Snyder v, 

State-Wide Properties, Inc., and Maurice Kamm, the ownership of the note 

of April 25, 1962, was again put in question. On May 28, 1964, the 

District Court entered an order finding that there was a total of 

^63*526.56 due on the note, of which Robert G. Wolfe and Bankers Finance 

Company were entitled to f 44, 914,66 to be paid to them first and the 

balance to be paid to Clinton B. Snyder. Bankers Finance Company and 

Clinton B. Snyder appealed from the order. Bankers Finance Company and 

Clinton B. Snyder having composed their differences, dismissed their 

appeals. When Bankers made a demand upon Robert G. Wolfe as trustee to 



T!.:'.'on -i!;: i 



.J ', i 



-2- 

make payment, he refused, claiming that he had an agreement with Harold 
Shlensky in behalf of Bankers Finance Company that Bankers would appeal 
for him a.nd pay all the costs of the appeal and that Bankers would extend 
the payments on the note to commence on February 3» 1965. 

The trial court, from the oral and documentary evidence found 
that after the ontry of the order in the Federal District Court an agree- 
ment was entered into between Harold Shlensky, representing the Bankers 
Finance Company and Robert G. Wolfe, trustee of Continental Investment 
Trust, that these parties would jointly appeal from the order entered by 
the District Court on May 28, 1964 and that the appeal was to be in the 
name of Bankers; that subsequently, Bankers, through Shlensky and Wolfe, 
trustee of Continental, entered into a further agreement that in consider- 
ation of Wolfe, as trustee, consenting to dismissal of the appeal. Bankers 
agreed that the monthly payments stipulated in the Continental Investment 
Trust note of April 25, 1962, commence on February 3» 1965, iri lieu of 
commencing June 15, 1962, as provided in the note and that the monthly 
payments shall be in the amount of $9^2.50 each; that the amount due under 
the note and the interest thereon were not changed by the agreement from 
the previous determination by the U.S. District Court; that thereafter, 
pursuant to the agreement, Wolfe consented to the dismissal of the pending 
appeal in the Federal Court of Appeals and the appeal was in fact dismissed 
by agreement of the parties. ■ ' 

The appellee and respondent, Wolfe, recognize the validity of 
the first point presented by the appellant. Bankers, that the burden of 
proof was upon Wolfe to establish his affirmative defense by a preponderance 
of the evidence. We are of the opinion that the trial court's findings are 
supported by the evidence. The trial judge heard and saw the witnesses and 
we must give due weight to his superior advantage in passing on the facts 
and judging the credibility of the witnesses. Hood Const. Corp, v, Clark- 
Randolph Prop., Inc., 347 111. App. 432; Jorn v. Tallett, 34l 111. App. 
240. The respondent, who had the burden of proving his affirmative defense 



-3- 

by a preponderance of the evidence, presented oral and documentary 
evidence from which the trial Judge had the right to and did find the 
factual Issues In favor of respondent. We agree with the respondent 
that there was no attorney-client relationship between petitioner and 
respondent at the time the pertinent order of the Federal Court was 
entered. The transaction between the petitioner and respondent pertaining 
to the note took place while the petitioner was at all times represented 
by its attorney, Richard W. Burke, The record shows that contrary to the 
position of Bankers, the consideration for the extension agreement, was 
the waiver by the respondent of the right of appeal from the Federal Court, 
A further consideration was the obligation assumed by the plaintiff in 
the Federal Court case to pay $2,000 to Bankers, Petitioner (appellant) 
thus received $2,000 in excess of the amount petitioner was awarded in 
the Federal Court order. For these considerations Bankers agreed to the 
revised payment schedule under the Continental note. 

Bankers advances the proposition that the Circuit Court order 
of May 28, 1964, was res Judicata of the amount due on the day the order 
was entered. Respondent agrees and the trial court so found. Being a 
civil case the parties had a right, subsequent to the entry of the 
judgment, to enter into a valid agreement that payment on the judgment 
begin on February 3, 1965 i instead of June 15, 1962, The trial Judge 
found that an agreement to this effect was entered into by the parties 
subsequent to the entry of the Federal Judgment, The order of the Circuit 
Court entered on January 18, 1965 » established the agreement of the 
parties as to the time of payment. 

The plaintiff in the Federal Court, Snyder, the respondent 
herein, Wolfe, as trustee, and Bankers, appellant herein, were dissatisfied 
with the Judgment and decided to appeal. In discussions these parties 
concluded that considering the expense and delay in the appeal and the 



\ 



-^- :■.■ 

uncertainty of the result, it would be wise to settle the dispute. This 
was done. The evidence substantiates respondent's position that there 
was an understanding between them that Bankers 'appeal would protect the 
interests of respondent. In agreeing to the dismissal of the appeal, ■'' 
there was adequate consideration to Bankers, Wolfe, as trustee, and to ^- . 
Snyder, plaintiff in the Federal Court case. The order is well supported 
by the law and the evidence. 

Therefore the order is affirmed. 

ORDER AFFIRMED. '-.• . ; ;; V. ' 



BRYANT, J., and LYONS, J., concur. 



i: 




50301 



MARQUETTE NATIONAL BANK, a National 
Banking Assoc.iation„ as Trustee under 
Trust Agreemenr , dated December 1, 
1961 and known as Trust No. 2013, 



Plaintiff-Appellant , 



V. 



VILLAGE OF OAK LAWN, a Municipal 
corporation. 



k2?'E.kh FROM 
CIRCUIT COURT 

OF COOK COUNTY 




Defendant -Appellee. 
MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT: 

This is an appeal from an order entered September 19, 1963, in 
the Circuit Courr, which found a zoning ordinance of the appellee, 
Village of Oak Lawn, valid as applied to the land of the appellant. 

On October 9, 1951, the Board of Trustees of the Village of Oak 

Lawn, Iliinoib, adopted a zoning ordinance pursuant to authority granted 

by the Statutes of the State of Illinois, 111, Rev. Stat., 1951, Art, 

24, Sec. 73, providing for classifying, regulating and restricting the 

location of trades and industries and the location of buildings designed 

for specified uses; regulating and limiting the height and bulk of 

buildings hereafter erected or altered; regulating and determining the 

area of yards, courts and other open spaces within and surrounding such 

buildings; establishing the boundaries of districts for said purposes 

and prescribing penalties for the violation of its provisions. 

I Thoiras Harney, a beneficiary of the trust under which the 

plaintiff holds title to the subject realty, is the real party in interest. 

He IS a partner In che firm of Travers and Harney, engaged in home and 

apartment construction business since 1954, During this time, 9 years, 

they built fifteen 3 and 4 flat buildings. All of said buildings were 

constructed on sites zoned for and located in areas devoted solely or 
I 
predominantly to apartment and multiple family use. He is therefore the 

beneficial owner of and is in possession of the following described real 

estate situated in the Village of Oak Lawn. 



-2- 

"Lots 13 to 22, inclusive, and the South half 
of the vacated alley lying north of and adjoining 
said lots in Block 6 in Charles Wadsworth's sub- 
division of the East 661.05 feet of the South 120 
acres of the Southeast quarter of Section 10, 
Township 37 North, Range 13, East of the Third 
Principal Meridian, in Cook County, Illinois." 

He acquired this subject site in November, 1959 or 1960, eight or nine 

years after the property had been zoned. 

Harney never applied for an apartment building permit for this 
site because it had co be rezoned first. He first inquired about such 
permit about Novem.ber 1961, not of the Village of Oak Lawn but a Mr. 
O'Malley. This was his first knowledge that the property had to be 
rezoned. Mr. O'Malley had sold the parcel to Mr. Matheson, who, in 
turn sold it to Harney. After his discussion with O'Malley, Harney 
petitioned the Oak Lawn Zoning Board of Appeals for a change in zoning 
to apartments. A hearing was held and the requested change in zoning 
was denied. On appeal to the Board of Trustees, the zoning change v;a6 
also dented. 

The subject realty is situated in the second block west of 
Crawford Avenue, on the north side of 103rd Street, rectangularly 
shaped, its length of 264.7 feet fronts on 103rd Street, its sides 
having a depth of 135 feet, face Komensky Avenue on the East and Karlov 
Avenue on the West. It is zoned for residential district A-1, which is 
single family dwellings in residential districts. It is surrounded by 
that type of zoning except across Komensky Avenue, where B-2 zoning is 
permitted, which is for multiple residences. He desired to construct 
multiple dwellings on the premises, for which a permit could not be 
given under the existing zoning. He thereupon brought this action 
against the Village of Oak Lavm. 

After a careful analysis of the contentions concerning the property 
in Standard State Ba nk v. Village of Oak Lawn , 29 111. 2d 465, 194 
N.E.2d 20i (1963), which includes the property purchased by Mr, Harney, 
the Supreme Court held that paramount of all the factors considered in 



i 



-3- 

reaching a determination as to whether the application of a zoning 

ordinance to a particular parcel of realty is whether the subject 

property is zoned in conformity to surrounding existing uses and whether 

those uses are uniform and established. Bennett v. City of Chicago , 

24 III. 2d 270, 181 N.E„:'.d 96 (1962); River Forest State Bank v . 

Village of Ma^nvood , 23 111. 2d 556, 179 N.E.2d 637 (1962); Wehrmeister 

V. County of ]>j.Page, 10 111. 2d 604, 141 N.E.2d 26 (1957). The subject 

area in this case has been most recently examined by the Supreme Court 

in Standard State Ban k v. Village of Oak Lawn , supra. The zoning is 

there described as follows; 

"The surrounding property is uniformly zoned A-residential . „ . . 
One Hundred Third Street is zoned B-1 for a distance of 600 feet 
eastward from Cicero Avenue, and a shopping center and bowling 
alley are located on the northeast corner of that intersection, 
while gasoline stations occupy the other corners. A funeral 
hone presently occupies the south side of 103rd Street across from 
the shopping center. Other than these, no zoning other than A° 
residentia l exits vjithin the one mile segment of 103rd Stree t 
be tl^g-rD- Cicero Av enue on the west and Crawford Avenue on the eas_t_ 
except at the intersection of Crawford with 103rd where B-1 zoning 
extends one bl ock westward to Komensky Avenue . .... Eighty-four percent 
of_the ene^_rn iie_ distance between Cicero and Crawford Avenue on 103rd 
Streec is A^resTde^ ntTally zoned . .... (Emphasis supplied) 

"One Hundred Third Street itself is a two-lane concrete street 
carrying approximately 11,000 vehicles per day. Outside of the B=l 
use previously described there is no use or development on 103rd 
Street between Crawford and Cicero other than single family dwellings 
with the exception of one lawfully nonconforming use 4 1/2 blocks 
east of the tract in question; this nonconforming use consists of a 
single family residence in which a real estate office is located. 
There is a 1 1/2 single=f amily dwelling located 1/2 block south of 
the southeast corner of the subject property on Kilbourn Avenue, with 
steps leading to the entrance five feet above grade and two connected 
oil tanks on the exterior of the building. While this could 
presumably be used as a two family dwelling, there is no testimony 
that it is so occupied." 



"It is clearly apparent. .. the predominant characteristic of the 
neighborhood is its single family residential development, 



■ c o e 



Zoning, being an exercise of the police power of the state ^ 
cannot be used to give economic advantage to the owner of a single parcel 
over that of surrounding owners except where required by the public 
health, safety or morals. Kennedy v. City of Evanston , 348 111. 426^ 
181 N.E» 312 (1932); Weseman v. Village of La Grange Park , 407 111. 81, 



-4- 

94 N.E.2d W4 (1951). Again, it is a well established principle that 

one who buys land has a right to rely upon the classification which 

existed at the time the purchase was made, and upon the rule of law that 

it will not be changed, unless the change is required for the public 

good. Cosmopolitan National Bank of Chicago v. City of Chicago , 22 111. 2d 

367, 176 N.E.2d 795 (1961); Bolger v. Village of Mount Prospect . 10 111. 2d 

596, 141 N,E.2d 22 (1957); Weseman v. Village of La Grange Park , supra. 

The controverted zoning ordinance protects against depreciation 

and therefore has a reasonable relationship to public welfare. As was 

said in the Bolger case, supra: 

"The fixing of boundary lines, unless arbitrary or 
capricious, is a matter of legislative judgment which 
courts will respect. Necessarily, residential property 
immediately abutting the line will be less valuable than 
property more remote from the boundary of a commercial 
zone, DeBartolo v. Village of Oak Park , 396 111. 404; 
Evans ton Best & Co. v. Goodman . 369 111. 207. But that 
affords no justification for the constant erosion of 
such boundaries." 

At best, the evidence in this case discloses room for a difference of 
opinion concerning the reasonableness of the challenged zoning classi- 
fication in its application to appellant's parcel. This being so, the 
determination of the municipal authorities should be respected. The 
cases hold, without exception, that their judgment is conclusive. 
Exchange National Bank of Chicago v. County of Cook , 25 111. 2d 434, 
185 N.E.2d 250 (1962); Fox v. City of Springfield , 10 111. 2d 198, 139 
N.E.2d 732 (1957). 

As this court observed in Reskin v. City of Northlake , 55 111. 
App.2d, 184, 190, 204 N,E.2d 600, 603: 

"The subject property had been zoned residential since 
1954 * * *^ Plaintiff's acquisition of the property in 
1961 must be considered to have been made with knowledge 
of these enactments by the City." 

Harney complains that the subject property lies across the street 

(Komensky) from the B-2 district. 



"'It is axiomatic that zoning must begin somewhere 
and end somewhere „ ' (DeBartolo v. Village of Oak Park , 396 
111, 404, 411;) soj even though property touches on 
industrially zoned areas j a residential classification is 
not thereby necessarily precluded. Because of the large 
residential area adjoining the instant property, the fact 
that the only means of access to the property is through 
that area, the evidence of loss in market value likely to 
result to nearby residences from the req\iested classification 
change; and the feasibility of using che p^'operty for 
residential purposes, we cannot say the village acted un- 
reasonably in drawing the ].ine where it did," William.s v. 
Village of Schiller Park, 9 111, 2d 596, 598, 138 N,E,2d 
5007'3or (1956)« 

The zoning of the Village of Oak Lawn in this case is not 

arbitrary or capricious. The judgment is affirmed. 

JUDGMEMT AFFIRMED. 



BURKE, PoJc. and LYONS, J„, concar. 



El 



50687 

PEOPLE OF THE STATE OF ILLINOIS 

Plaintif f=AppelIeej 

VSo 

Ro W, THOMPSON (whose first name 
is unknown to said Grand Jurors 
[Impleaded] ) „ 

Def endant-'Appellant 



(%5- r. /j ^ v^ 

APPEAL FROM 

CIRCUIT COURT 
COOK COUNTY 

CRIMINAL DIVISION^ 




MR„ PRESIDING JUSTICE McCORMICK DELIVERED THE OPINION OF THE COURT„ 

The defendants Ro Wo Thompson, was indicted with Ronald Doss 
for the crime of armed robbery „ He had a jury trials and at the 
close of the case the charge was reduced to robbery„ The jury re- 
turned a verdict of guilty„ Motion for new trial and motion in 
arrest of judgment were denied. The court entered judgment on the 
verdict and the defendant was sentenced to from five to ten years 
in the penitentiary o The defendant j, Re W„ Thompson « took an appeal 
by writ of error to the Supreme Court of Illinois ^ which court trans- 
ferred the case to this court „ 

The defendant here argues that the evidence failed to estab- 
lish the "requisite proof that force or the threat of the imminent 
use of force was exerted and that the persons robbed were in fear 
for themselves o" He also argues that the complaining witnesses were 
in a state of intoxication and this negated any present fearg and 
that the evidence was not sufficient to support a conviction o 

Michael O'Hara^ one of the complaining witnesses c, testified that 
he and Gordon Henkel went out the night of September 15 5 1962; that 
they visited a tavern where he 3 O'Hara^ drank 20 glasses of beer; 
that he drank two bottles of beer at a second tavern,, and one bottle 
at a third o He stated that Henkel drank five or six beers from 8:^00 
Pom, to 12 30 aom„s, and later had another bottle of beer at the last 
tavern, they visited o Both O'Hara and Henkel testified that they went 
to the last tavern to inquire about a job for Henkel; that as they 
left the tavern O'Hara was solicited by a prostitute and that he 



1 



_2« 

engaged her in conversation while walking along 65th Street between 
Cottage Grove and Ingleside Avenues, around the corner from the last 
tavern they had visited,, While O'Hara was walking along in conversa- 
tion with the woman, Henkel fell behind when he developed a severe 
stomach acheo The time was about 3° 00 a„mo They walked away from 
Cottage Grove on 65th Street ^ and while walking back towards Cottage 
Grove from Ingleside or Drexel Avenue g five or six persons arrived 
on the scene and commenced to go through the pockets of O'Hara and 
Henkel o Henkel said he had a glimpse of a weapon, O'Hara did not 
see any weapon » The woman left as soon as the men approached themo 
0*Hara testified that the men told them to "put your hands in the 
air^"that the order was obeyed^ and that the men took $6„00 from his 
pocket So Defendant Thompson was talking to the victims during this 
time 5, asking them what business they had in the neighborhood „ 

In court Henkel identified Thompson „ Henkel testified to the 
beer drinking and corroborated 'Harass testimony that five men had 
approached them 5, identifying Doss and Thompson 5, and said they were 
told to put their hands up and they obeyed o He stated that Doss 
started to search himo When the police cars came Henkel ran after 
Doss because Doss had taken all of Henkel 's belongings. As Doss was 
running away Henkel tackled hinij, and the police ran down the alley 
and caught Thompson „ Henkel testified that he had lost a pocket 
watchg a glass cutter ^ a cigaret lighter and a ballpoint pen 5 to= 
gether with $l2o00 in cash. He identified the lighter which was in= 
troduced in evidence and stated that he had not seen the lighter after 
the robbery until Doss took it out of his pocket in response to the 
order of the police„ 

Wesley Ross testified on behalf of the State that he was a 
janitor; that he was going to look after the fire in one of his build= 
ings; that he saw the robbery and heard the five men tell O'Hara and 



C30 J OD 

Henkel to hold up their hands; that one was going through their 
pockets and another one was talkingo He identified both Doss and 
Thompson in court and stated that Doss was going through Henkel ' s 
pockets; that Thompson was doing the talking; that when the police 
came Thompson rang but was caught ^ and that Henkel had caught Doss^ 

Two police officers testified that in response to a call they 
went to the scene of the robbery and saw a group of men^ two of 
whom were O'Hara and Henkel „ They stated that Doss was being held 
by Henkel 3 and Thompson was running west on 65th Streets Hammondg 
one of the officers ^ stated that he chased Thompson and arrested him„ 
He identified him in the court roomo His partner^ Frank Neug arrested 
Doss who was being held by Henkel „ Officer Hammond identified the 
cigaret lighter and stated that the first time he saw it was when 
it was taken from Doss^ pocket o Frank Neu corroborated the testi= 
mony of Hammond „ 

Doss testified in his own defense as follows 2 He had been visit" 
ing a friend until about 3 o'clock on the morning of September 16; 
that after two men had stopped him and had asked for money for a 
drinkg which he gave themj, he started walking towards Ellis Avenue „ 
The people were standing about a block from where the witness said 
the robbery took place « As he walked up to the group of men someone 
yelled "Police j," and everybody started running o One fellow grabbed 
him and threw him down 9 and when the police came the person who had 
thrown him down (Henkel) told the police that he,, Doss 5, had robbed 
himo The police searched Doss and found nothing on him,, After the 
police had handcuffed him he looked down on the ground and saw the 
cigaret lighter; he picked it up and handed it to the policeman who 
told him to keep ito He put it in his pockety In the police station 
a police officer searched him and found the lighter in his pocket <> He 
stated that he had not robbed anyone and that he did not know Thompson o 



„4= 

Thompson testified that he lived at 6527 South Drexel ; that 
he had been to a friend "s house prior to his arrest; that at the 
friend's house they had a whist game and there was considerable 
drinking o He said he saw a group of people .j then saw a woman break 
loose from them and come running down the street behind him, that he 
ran to the corner and was standing there when the police officer 
came and arrested himo He told the officer he had been drinking 
beer at a friend's house; the officer then brought him back to the 
police stationo One of the complaining witnesses said Thompson 
looked like one of the men with the group which had robbed them^ 
When Thompson was searched he had only 32 cents in his pocket » He 
testified that at the time he was arrested he was pretty drunko 

Frank NeUg a police officer 9 was called as a rebuttal witness 
by the State., and testified that he had originally arrested Doss 
and that from the time he arrested him until he drove off i.n the 
wagon^, he was present with him at all times ^ that he did not see 
him reach dowr- and pick up a lighter^, nor did he hear any police 
officer converse with him regarding a lighter^ He did not see any 
officer place a cigaret lighter in his pockety and he did not place 
Doss in handcuffs when he was first arrested,, He was handcuffed 
when he was put In the wagon by the wagon crew, Neu had originally 
searched Doss to feel for a weapon but he did not go into his pocket So 

In the Criminal Code (Illo ReVo Stat„ 1963, ch„ 38 ^ § 18^1) rob- 
bery is defined as follows s 

"A person commits robbery when he takes property 
from the person or presence of another by the use 
of force or by threatening the imminent use of forces" 

In People Vo Bodkin o 304 111„ 124^ 136 N„Eo 494^ there is a discussion 

of what evidence is sufficient to convict a defendant of the crime of 

robbery under a statute containing essentially the same definltionc 

Illo Rev,, State 1959 9 cho 38 ^ § 501 „ In that case is cited Horn, Vo 

State. 89 Tex„ Crimo 220. where the court saids 



/ 



-5- 

"If under the circximstances and conditions surround- 
ing the transaction he has a reasonable belief that 
he may suffer injury unless he does comply with the 
robber's request, the 'fear' required by law is 
present," 

The court also quoted from Russell on Crimes (vol. 2, 1910 ed,ll37, 

1138); as follows: 

"The extortion of property by fear is robbery though 
the property be taken as a colorable gift. So that 
if a man, whether with or without an offensive weapon, 
but with such circumstances of terror as indicate a 
felonious intention, asks alms from a person, who 
gives to him through a fear of violence, it will be 
robbery, » . . It is enough if the fact be attended 
with such circiomstances of terror, such threatening 
by word or gesture, as in common experience are 
likely to create an apprehension of danger and induce 
a man to part with his property for the safety of his 
person," 

In the instant case two complaining witnesses at 3:00 a.m. were 
ordered to hold up their hands, with five men surrounding them, which 
men then proceeded to go through their pockets, taking their money and 
whatever valuables they had. To take the view that this is not rob- 
bery as defined in the statute would be utterly absurd. The defend- 
ant denied that he was guilty of any crime. The jury believed the 
testimony of the witnesses who testified on behalf of the State. 
This they had a right to do, and the court indicated its approval of 
the verdict by denying the motions for new trial and arrest of judg- 
ment. There is no doubt in our minds that under the evidence in the 
case the defendant was properly found guilty. The attempt of counsel 
to show that the complaining witnesses were in a drunken stupor lacks 
any support in the evidence. 

The judgment of the Circuit Court is affirmed, 

AFFIRMED, 
DRUCKER, J,, and ENGLISH, J., concur. 
Publish abstract only. 



^& 



{j.^^ 



•/ts*-^ 



No. 65-23 



^5" .T-/?^^/?? 



In The 



APPELLATE COURT OF ILLINOIS 



Third District 



A.D. 1965. 




FARMALL EMPLOYEES CREDIT 
UNION, 



Plaintiff — Appelle e , 



vs. 



P. J. WADSAGER, ROBERT PULVER, 
HARRY RUSSELL and LEROY PARR, 

Defendants — Appellants. 



Appeal from the Circuit 
Court of Rock Island 
County, Illinois. 



Honorable 

J. P. Wilamoski, 

Judge Presiding. 



ALLOY, P. J. 



This is an appeal from a judgment of the Circuit Court of Rock Island 
County as against P. J. Wadsager, as principal, and Robert Pulver, Harry 
Russell and Leroy Parr, as co-signers, arising from a judgment by con- 
fession on a note in the sum of $1, 966, 60 in favor of Farmall Employees 
Credit Union. After judgment had been entered for the amount indicated, the 
CO- signing Defendants (not including Wadsager, the principal) filed a motion 
to vacate the judgment supported by affidavits. The motion was allowed and 
Defendants thereafter filed their answer setting out an affirmative defense to 
the effect that fraud by Plaintiff's agent induced the three Defendant co- signers 
to sign the note in question. It was asserted that there was a positive repre- 
sentation by Plaintiff's agent that disability insurance and life insurance, 
under a blanket coverage policy purchased by Plaintiff, was in force and effect 



w 



• 1- 



I 



11 on the life and to cover possible disability of the principal obligor, Wadsager. 
As a matter of fact, there was no disability insurance on him. Wadsager 
later became disabled. 

Plaintiff in a counter -affidavit asserted that the principal obligor was 
sixty-three years of age at the time of making the loan and, therefore, was 
not qualified for disability insurance. Plaintiff also contended that Defendants 
knew of the limitation on coverage by insurance and denied that the representa- 
tion as to disability coverage -was made or that Defendants relied on Plaintiff's 
assurances. There ■was no evidence on hearing to support any of such con- 
tentions of Plaintiff. 

In a trial on the merits, thereafter, the evidence specifically indicated 
that the Defendant Wadsager requested the other three Defendants to co-sign 
his note at the credit union and they had at first refused. They then decided 
that if the principal obligor was covered by disability and life insurance on the 
loan, they would co-sign for him. Each Defendant at separate times -went to 
the general manager of the credit union and asked him whether there w^as dis- 
ability insurance and life insurance on Wadsager to cover the loan obligation. 
They were advised by the general manager that there was such insurance, and 
each of the Defendants testified that, relying on the general manager's state- 
ment, they were thus induced to co-sign the note. The manager of the credit 
union did not deny such talks with the three Defendants but stated that he did 
not know the borro'wer Wadsager' s age at that time. He pointed out that if a 
borro-wer is under the age of 60 and becomes disabled, the insurance company 
w^ould pay the claim and that such blanket insurance is made available to all 
borrowers by the insurance company. He did not, however, advise the three 
Defendant co- signers of this situation as to insurance or discuss the question 
of age with the Defendants. 



From the facts in the record, it is apparent that there was an uncontra- 
dicted representation of coverage as to disability by the Plaintiff's general 
manager to the three co- signing Defendants and that such representation was 
relied upon by them. It is not material that the person who makes a represen- 
tation, which is not true as a matter of fact, had any knowledge as to its truth 
or falsity if the co- signers relied upon it to their detriment. The Courts of 
this State have clearly supported the principle that where a party makes an 
assertion of a fact without knowing it to be true and such representation is 
relied upon by another, the one who induced the action must, suffer rather than 
he who relies on the representation ( BRENNAN v. PER5SELLI. 353 111. 630). 
The co-signers, under the facts before us, reposed confidence in the manager 
of the Plaintiff and relied upon the statement that there was disability insurance 
as to Defendant Wadsager. The record indicates that the co- signers would not 
have signed but for such representation. Plaintiff v/as not entitled to enforce 
the note as against the co- signers in view of the fact that the representation 
as made was not true, even though innocently made by the general manager of 
the Plaintiff- credit union. It was a representation of such significance and 
materiality as to constitute a valid defense to an action on the note as against 
the CO- signers in view of the admitted disability of Defendant Wadsager. 

The Circuit Court of Rock Island County should have granted the motion 
to vacate the judgment and recall the execution. This cause will, therefore, be 
reversed and remanded to the Circuit Court of Rock Island County w^ith direc- 
tions to vacate the judgment heretofore entered in this cause. 

Reversed and remanded with directions. 



Stouder, J. and Coryn, J, concur. 



'i'f 





^(.^^ 



ty 



"-- — Abstract 



No. 65-52 



"^fr^/i^^^Hp} 



'^ __ 



IN THE 
APPELLATE COURT OF ILLINOIS 




SECOND DISTRICT 



FDILi® 



U£C 2^ 1965 



HOWARD K. KELLEH 

Clerk AppsllaU Court Second OiatricI 



PEOPLE OF THE STATE OF ILLINOIS, 

Plaintiff -Appellee, 



V. 



CHARLES W. ZAESKE, 

Defendant- Appellant. 



Appeal from Circuit 
Court, Kane County 



MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE 
COURT: 

This is an appeal from a judgment of the Circuit 
Court of Kane County entered on a jury verdict finding the defendant, 
Charles W. Zaeske, guilty of the crime of arson. The defendant was 
sentenced to a term of 1 to 3 years in the Illinois State Penitentiary. 

Zaeske and one Richard Smith were indicted for 
burning the home of Herman Hecht without his consent on or about 
August 31, 1964. Zaeske was lessee of a portion of Hecht' s property, 
including a small office at one end thereof, for a used car lot. Hecht* s 
home was located at the opposite corner of the property. Hecht, a 
man of advanced years, was apparently friendly to his tenant and would 
regularly visit with him at the office. 

Originally, both Zaeske and Smith entered pleas of 
"not guilty" but Smith subsequently changed his plea to "guilty" and 
applied for probation. 



-2- 



The trial was held on February 9, 1965. Only three 
witnesses testified, all for the State. Witness Williams testified 
that he was the nephew of Herman Hecht and that he received a 
telephone call on the evening of August 31, 1964, informing him that 
his uncle's house was on fire. Williams went to the fire, saw the 
house burning, and remembered seeing both Smith and Zaeske at 
the scene. ■ ' 

Witness Alston testified that two or three weeks 
before the fire the defendant Zaeske told him that he was trying to 
convince people that Hecht was "crazy" so that Hecht would have 
to sell the property. He also stated, after considerable prompting 
by the State's Attorney, that a couple of days after the fire Zaeske 
informed him that Smith had set the fire. At the time of trial, 
Alston was in the County jail and had applied for probation. 

Smith himself was the principal witness for the 
State and the only one to attempt to tie the defendant Zaeske with 
the setting of the fire. Smith had been employed by Zaeske on an 
informal basis, principally as a car washer. Smith testified that on 
a certain evening four or five months earlier, he and Zaeske con- 
spired to rob Hecht. When pressed to be more specific in regard to 
the date of these transactions, he stated that "it was approximately 
October 30th or something". Over objection, Smith related that 
Zaeske directed him to enter Hecht' s home to steal money while 
Zaeske and Hecht were having coffee down the street. This act com- 
pleted and the loot divided, Zaeske then directed Smith to return to 
Hecht's home and set a fire in a closet so as to destroy certain auto- 
mobile titles that Hecht kept there. The testimony at this point becomes 
very confused and it does not appear clear whether Hecht had the titles 



I 



-3- 

in his closet or Zaeske had taken them earlier and wanted to 
destroy all of Hecht's papers to cover their unauthorized removal. 
In either event, according to Smith, he returned to the house and 
set the fire and, after returning to the office to meet with Zaeske, 
was complimented by him for having done "a very good job of it". 
On the basis of this evidence, the jury found the defendant guilty as 
charged. 

It is well established that the testimony of an 
admitted accomplice must be received and acted upon with the 
greatest caution. People v. Andrae, 295 111. 445; People v. DeRose, 
359 111. 512, 516. Such testimony is fraught with weakness, being that 
of an admitted criminal and possibly motivated by malice, fear, or 
hopes of leniency from the prosecution. For these reasons, it is 
scrutinized carefully and subject to grave suspicion. People v. Hermens, 
5 111. 2d 277, 285. At common law and in Illinois, it has been held 
that the uncorroborated testimony of an accomplice can be sufficient 
to convict if the evidence as a whole establishes the guilt of the accused 
beyond a reasonable doubt. People v. Bugg, 345 111. 210; People v. 
Gordon, 344 111. 422. 

It has been also held that where the accomplice has 
hopes of favorable treatment by the State, his testimony must carry the 
absolute conviction of its truth to be accepted. People v. Grove, 284 111. 
429. 

In the instant case the witness Smith had entered a 
guilty plea to the same charge and had a petition pending for probation. 
His hopes for reward from the prosecution seem obvious. His testi- 
mony, even disregarding his confusion as to the date of the fire, lacks 
credibility. There would be no apparent gain to Zaeske in setting Hecht's 



I 



-4- 

home afire even if he had already stolen the automobile titles 
as suggested by the State. There is little evidence of ill-will 
towards Hecht on the part of Zaeske, other than the statements of 
Alston, and, there is considerable indication that the two were good 
friends. Hecht's nephew stated that Zaeske furnished clothing to the 
old man on the night of the fire after his own had been destroyed. 

The uncorrorborated testimony of an accomplice 
is sufficient to convict if the evidence as a whole establishes a 
defendant's guilt beyond a reasonable doubt. However, under the 
circumstances we feel that the testimony of Smith fails to carry the 
conviction of truth and cannot be accepted. His testimony linking 
Zaeske to the arson is itself completely uncorrorborated and the 
evidence as a whole fails to establish the defendant's guilt beyond 
a reasonable doubt. 

In view of our determination, we do not feel that it 
is necessary to consider the other errors assigned. 

It does not appear that the ends of justice will be 
advanced by remanding this cause for a new trial. The judgment is 
therefore reversed without remandment. 

REVERSED. 
MORAN, J. and DAVIS, J. concur. ■ 



y